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


MARCIA LANGE, Applicant

FEDERAL EXPRESS, Employer

FEDERAL EXPRESS CORP, Insurer

WORKER'S COMPENSATION DECISION
Claim No. 94026706


An administrative law judge (ALJ) for the Worker's Compensation Division of the Department of Industry, Labor and Human Relations 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.

ORDER

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

Dated and mailed March 20, 1996
langema.wsd : 101 : 1 ND 8.24

Richard T. Kreul, Commissioner

David B. Falstad, Commissioner

MEMORANDUM OPINION

In its petition for commission review, the employer and the insurer (collectively, the respondent) assert generally that the ALJ erred in crediting the opinion of Dr. Beltz over those of Dr. Lulloff and Dr. Stiehl. The ALJ rejected Dr. Stiehl's opinion because it was based on the understanding that the applicant made her deliveries and pickups in a "car" rather than a "van." He rejected Dr. Lulloff's opinion as ambiguous because the doctor opined both that the applicant's condition was not caused by work and also that work temporarily aggravated the condition. The ALJ also rejected Dr. Lulloff's opinion because it was submitted in the form of uncertified office notes rather than in certified report form.

a. Dr. Stiehl.

With respect to the "car" versus "van" issue, the respondent first points out that the ALJ relied on the testimony of lay witness Karen Leinen who described the applicant's activities as getting in and out of a "vehicle." The respondent asserts that if Dr. Stiehl had used the term "vehicle" instead of "car" in his report, the ALJ would have had no basis for rejecting the Dr. Stiehl's report.

Of course, Dr. Stiehl did not use the word "vehicle," he used the word "car." The commission believes that in common usage the term "car" used in this context means "automobile," or vehicle "designed to transport passengers." The term is distinguishable from a "van," which is instead designed to transport goods or animals. In common usage, though, both "vans" and "cars" are "vehicles." (1) Aside from that, of course, Ms. Leinen's deposition testimony was not offered as expert medical opinion, so the ALJ would be justified in demanding different levels of specificity from these witnesses.

The respondent next asserts that any misunderstanding on Dr. Stiehl's part necessarily arose out of applicant's own description of her duties as relayed to Dr. Stiehl. This, of course, is entirely speculative; and the commission believes it is more likely that the applicant described her duties correctly. In either event, the fact remains that Dr. Stiehl's opinion is based on an inaccurate job description. Further, Dr. Stiehl's report discusses Dr. Lulloff's October 28, 1992 note which states the applicant got "in and out of trucks a lot." If the applicant's description of her job was misunderstood by Dr. Stiehl, this should have alerted him to the misunderstanding. The respondent's lawyer, to whom Dr. Stiehl's opinion was addressed, could also have corrected the misunderstanding. In short, the commission cannot conclude that Dr. Stiehl's misunderstanding of the applicant's job duties was the applicant's fault or that, even if it were, the commission must now rely on the inaccurate report as a basis for deciding this claim.

The respondent also argues that nothing in the record indicates that getting in and out of a van is any more stressful than entering or exiting a car. On this point, the commission notes the applicant used an Econoline van, which the applicant testified required making two steps to enter or exit. In fact, Ms. Leinen referred to entering and exiting the vehicle as "jumping in and out" and "climbing." Exhibit F, page 339. On this basis, the ALJ reasonably inferred that the distinction between stepping in and out of an automobile and jumping or climbing in and out of a van was a sufficient basis for rejecting Dr. Stiehl's opinion.

The respondent also suggests that the ALJ should have postponed the hearing to allow an opportunity to clarify his opinion. However, the commission cannot accept this argument. An administrative law judge should be able to make a decision based on the hearing record, and would no doubt face an argument of bias if he or she postponed hearings sua sponte to allow parties to submit clarified expert medical opinions. Administrative law judges and the commission frequently weigh the credibility of expert medical opinions based on the accuracy of the histories contained therein; postponing every case in which an inaccurate history might be a deciding factor would be unduly burdensome on the process and on the parties.

Finally, the respondent itself points to another inaccuracy, or at least material ambiguity, in Dr. Stiehl's opinion. Dr. Stiehl reported that the applicant would "get in and out of her car 60-70 times per day." While the ALJ found it reasonable to assume that the applicant made 50 stops per day, he went on to state that she "climbed in and out of the van between 100 and 190 times per day." The commission realizes that it is difficult to ascertain whether Dr. Stiehl counted "getting in" and "getting out" as separate acts as the ALJ did. However, this point is another reason to discount Dr. Stiehl's opinion that the applicant's surgery and disability were probably not related to occupational exposure.

b. Dr. Lulloff.

The respondent also asserts that the ALJ erroneously rejected Dr. Lulloff's opinion because it was ambiguous and submitted in improper form. With regard to the first point, the respondent first asserts that the ALJ inaccurately characterized Dr. Lulloff's report as stating the applicant's work temporarily aggravated her condition. The respondent contends that the doctor instead stated that any ordinary activity and sporting activity as well as work or going up and down stairs would temporarily aggravate the applicant's condition. Dr. Gmeiner describes Dr. Lulloff's note as indicating "that he felt that the chondromalcia was not caused by her work and felt that work was a temporary aggravating factor." Exhibit 7, Gmeiner's April 19, 1993 report, page 1.

The commission must agree with the ALJ's conclusion that it is unclear from Dr. Lulloff's report whether he believed the applicant's work injury played no role in causing the applicant's disabling condition, or whether he thought work caused the underlying condition to be temporarily aggravated resulting in disability. The respondent asserts that Dr. Lulloff's opinion should be read to mean the former; that is, that symptoms from the underlying condition would simply manifest at work or in any other normal activity. While it may well be that is what the doctor meant, the ALJ is correct in pointing out it is not what he said.

The ALJ also pointed out that Dr. Lulloff's office notes in exhibit 8 are neither certified by a custodian nor certified or verified by the doctor himself. Section 102.17 (1)(d), Stats., provides that a doctor's office note, made in the regular course of examination and certified by the custodian of the note, is prima facie evidence as to the matter contained in the note to the extent the note is otherwise competent and relevant. Section 102.17 (1)(d), Stats., also provides that verified (2) reports of physicians and certain other medical practitioners are prima facie evidence as to matter contained in the reports, and are admissible as evidence of diagnosis, necessity of treatment and cause and extent of disability. These provisions, read together, suggest that simple office notes, certified by a custodian but not verified by the practitioner, are not prima facie evidence of diagnosis or cause and extent of disability.

The respondent points out that the applicant did not object to the introduction of the office notes of Dr. Lulloff. The ALJ recognized this. In his synopsized notes of the hearing, the ALJ stated that the applicant agreed to the introduction of the office notes, even though not certified by the custodian, for the purposes to which office notes may normally be put. The ALJ went on to conclude that the parties did not stipulate to the introduction of the notes as an expression of expert opinion on causation without the statutorily-required verification by the doctor.

The respondent rejects the ALJ's reasoning as too technical. The commission acknowledges that it has in the past looked to opinions expressed in office notes to gauge the credibility of expert opinion in a practitioner's report. However, given the ALJ's understanding of the stipulation, the commission is not inclined to accept office notes in this case as the full-fledged equivalent of a verified practitioner's report.

c. Dr. Beltz.

The respondent next asserts that the practitioner's report of Dr. Beltz is flawed as it is undated and contains an un-initialed correction. However, the commission perceives a difference between a verified expert opinion expressed in proper form except for an omission of a date and an opinion that is not verified at all. Moreover, while the un-initialed correction is unfortunate, it is not fatal. Further, even though the doctor may have marked more than one causation box, that does not automatically render his opinion incredible. Indeed, the commission has recently been reversed for disregarding an expert medical opinion on that ground. Anderson v. LIRC, court of appeals case no. 95-1023-FT, unpublished district I decision (November 7, 1995).

Next, the respondent asserts that Dr. Beltz's opinion is subject to the same criticism based on ambivalence as Dr. Lulloff's. Dr. Beltz variously states in his office notes that he is not certain that the condition was work-related, that there was some confusion over whether the condition was work- related, and that "work exacerbated if not caused" the injury. However, it is for exactly this reason that a clear and verified practitioner's report expressing expert opinion is helpful. A doctor's notes will often express some ambivalence about causation or extent of disability as the doctor is forming those opinions during the course of examination and treatment. That does not mean that when he or she eventually expresses an expert medical opinion in certified form as a result of that sifting and weighing process, the opinion is not made to the requisite degree of medical probability required in workers compensation cases. Unruh v. Industrial Commission, 8 Wis. 2d 304, 401-02 (1959); West Bend v. LIRC, 149 Wis. 2d 110, 129-30 (1989).

d. Conclusion.

In short, the commission acknowledges that the applicant's treating doctors appear to disagree whether work caused the applicant's disability and need for surgery in this case. Nonetheless, the fact remains that the applicant has worked for the employer nearly nine years prior to the October 1992 date of injury to her left knee in this case. During much of that time she performed activities credibly described as jumping or climbing in and out of a van 100 to 190 times per day. The commission also appreciates that the applicant did not claim workers compensation for an earlier, similar problem in her right knee. However, the right knee problems became disabling after four years of this activity and, while the applicant did not seek compensation for the right knee, that does not mean it could not have been work- related. Considering the record as a whole, then, the commission was not left with a legitimate doubt that the applicant has established a compensable disability in this case.

 

PAMELA I. ANDERSON, CHAIRMAN, (Dissenting):

I am unable to agree with the result reached by the majority herein and I dissent. I did not find Dr. Beltz' opinion to be credible. Dr. Beltz originally believed that the applicant had a work-related meniscal tear. This proved not to be true. Dr. Beltz referred the applicant to Dr. Lulloff. Dr. Lulloff correctly diagnosed the chondromalacia patella of the left knee. Dr. Beltz is not an orthopedic specialist but Dr. Lulloff is an orthopedic specialist. Dr. Beltz did not treat the applicant for the chondromalacia patella. Dr. Lulloff was the treating doctor and did the arthroscopic surgery with osteochondroplasty. The applicant had surgery on her right knee in 1987 for chondromalacia patella and no claim was made that the surgery was work related. While Dr. Stiehl was incorrect about how many times she got in and out of the van, he also gave an opinion that it was not a work-related injury. Dr. Beltz is the only opinion to say that this was a work-related injury.

The administrative law judge is critical of Dr. Lulloff's opinion because it was not submitted with a WC-16-B form. The parties stipulated to the admissibility of Dr. Lulloff's records without a formal WC-16-B. 102.17(1)(d) Stats. and Ind 80.22 allow for these reports to be prima facie evidence. The administrative law judge believed that there was confusion on Dr. Lulloff's opinion because he had mentioned that "her work, or any ordinary activity and sporting activities going up and down stairs etc. would temporarily aggravate this so that the work situation is not unique." I find this to mean what Dr. Lulloff says that it would temporarily aggravate her condition or symptoms. Dr. Lulloff has not said that it would cause the disability by precipitation, aggravation and acceleration of a preexisting progressively deteriorating or degenerative condition beyond normal progression.

Exhibit 5 has the records of Dr. Buck who treated the applicant for her right knee problems in 1987. The office notes for July 28, 1987 mention "Her symptoms were aggravated by certain activities such as ascending and particularly descending stairs, kneeling, squatting etc." Dr. Buck did not report this as a work-related injury. Dr. Buck's notes for August 11, 1987 also refer to problems with her left knee. He reports "she was struck over the anterior aspect of the left knee by an axe handle within the past few days and has had considerable pre-patella pain since that time. She has no history of previous problems with the left knee." Notes of September 2, 1987 and October 6, 1987 also mention problems with the left knee.

Dr. Beltz' note on May 19, 1993 says "There is also some confusion over whether or not this is work related. It was my opinion that her job required stepping in and out of a van, going up and down stairs, pushing carts, and this all exacerbated if not caused her knee pain." While Dr. Beltz filed a WC-16-B he originally appears to have checked all the boxes and then checks the box for occupational disease and the box that says the disability was caused by precipitation, aggravation and acceleration of a preexisting progressively deteriorating or degenerative disease beyond normal progression. I think it is Dr. Beltz who is confused. I am certain that he is correct that her work would cause her symptoms like pain to be worse when she was working and do not believe that he has the expertise to determine if her work contributed to the progression of her knee problem.

For these reasons, I have legitimate doubt that the applicant's work caused her left knee problem. I would reverse and dismiss.

Pamela I. Anderson, Chairman

 

cc: ATTORNEY DOUGLAS K MARONE
STEINHILBER SWANSON MARES MARONE & MCDERMOTT

ATTORNEY MARYEVE HEATH
HINSHAW & CULBERTSON


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Footnotes:

(1)( Back ) Webster's Ninth New Collegiate Dictionary (1988) defines "car" as a synonym for a "automobile;" defines "automobile" as automotive vehicle designed for passenger transportation; defines "automotive" as synonymous with self-propelled; defines "van" as an enclosed motortruck used to transport goods or animals or as a multipurpose enclosed motor vehicle having a boxlike shape rear or side doors and side panels; defines "vehicle" as synonymous with "motor vehicle;" and defines "motor vehicle" as any automotive (or self- propelled) vehicle not on rails.

(2)( Back ) In the case of doctors practicing in Wisconsin, reports may be certified as opposed to verified.