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


JAMES R KLEMP, Applicant

UNITED PARCEL RHINELANDER, Employer

LIBERTY MUTUAL FIRE INS CO, Insurer

WORKER'S COMPENSATION DECISION
Claim No. 94035163


An administrative law judge (ALJ) for the Worker's Compensation Division of the Department of Workforce Development (Department of Industry, Labor and Human Relations prior to July 1, 1996) 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 tenth paragraph of the ALJ's Findings of Fact and insert:

"The applicant has sustained permanent partial disability rated at 50 percent compared to amputation of a leg at the hip, accruing as of December 10, 1993. The applicant is thus entitled to 250 weeks (0.50 of 500 weeks) of permanent partial disability benefits at the statutory maximum for injuries occurring in 1993, $152 per week. This results in a total award for permanent partial disability of $38,000. As of November 9, 1996, 152 weeks of permanent partial disability have accrued amounting to $23,104.

"The applicant also approved an attorney fee of 20 percent of the award under sec. 102.26, Stats. The total fee is thus $7,600 (20 percent of $38,000). Of the total fee, only the amount attributable to the first 152 weeks of permanent partial disability ($4,620.80) has yet accrued; the amount attributable to the final 98 weeks ($2,979.20) remains unaccrued. As a result, the unaccrued portion of the fee is subject to an interest credit of $189.90, leaving a net fee which reflects its present value of $7,410.10. This shall be deducted from the applicant's total award and paid within 30 days.

"The amount due to the applicant within 30 days is $18,483.20. This is determined by subtracting the accrued fee ($4,620.80) from the total accrued award ($23,104).

"The amount remaining to be paid to the applicant as it accrues beginning after November 9, 1996 is $11,916.80. This is determined by starting with the unaccrued award ($14,896) and subtracting the unaccrued attorney fee without deducting the interest credit ($2,979.20). This amount shall be paid to the applicants in monthly installments of $658.67, beginning December 9, 1996."

2. Delete the last sentence of the thirteenth (last) paragraph of the ALJ's Findings of Fact and insert:

"It will also be made interlocutory for the purpose of a possible claims for functional permanent disability compared to the body as a whole, or for permanent disability based on loss of earning capacity, or both, pending the supreme court's decision in Hagen v. LIRC, 201 Wis. 2d 51 (Ct. App., 1996), petition for review granted (1996)."

3. Delete the ALJ's INTERLOCUTORY ORDER and substitute the second, third and fourth paragraphs of the MODIFIED INTERLOCUTORY ORDER set out below.

MODIFIED INTERLOCUTORY ORDER

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

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

(1) To the applicant, James R. Klemp, the sum of Eighteen thousand four hundred eighty-three dollars and twenty cents ($18,483.20) as compensation for disability.

(2) To the applicant's attorney, John H. Schiek, the sum of Seven thousand four hundred ten dollars and ten cents ($7,410.10) as a fee.

Beginning on December 10, 1996, and continuing on the tenth day of each month beginning thereafter, the employer and the insurer shall pay the applicant Six hundred fifty-eight dollars and sixty-seven cents ($658.67) per month until the sum of Eleven thousand nine hundred sixteen dollars and eighty cents ($11,916.80) has been paid.

Jurisdiction is retained, consistent with this decision, as amended.

Dated and mailed November 7, 1996
klempja.wmd : 101 : 1  ND 5.18

Richard T. Kreul, Commissioner

David B. Falstad, Commissioner

MEMORANDUM OPINION

Both parties have filed petitions for commission review. The employer and the insurer (collectively, the respondent) contends that the ALJ erred by finding that the applicant's hip disability was caused by work. The applicant contends the ALJ erred by finding the applicant's back disability was not caused by work. The applicant also contends that the ALJ erred by not treating the applicant's disability to his hip as unscheduled injury under the recent court of appeals holding in Hagen v. LIRC, 201 Wis. 2d 51 (Ct. App., 1996), petition for review granted (1996).

a. The hip condition.

The commission first considers the respondent's assertion that the ALJ erred by finding the applicant's hip injury arose out of his employment with the employer while performing services growing out of and incidental to that employment. After carefully considering the medical record in this case, the commission concludes that the ALJ correctly credited Dr. Kitzman's opinion over Dr. Zeman's on this point.

Treating doctor Kitzman prepared a practitioner's report on form WC-16-B dated June 9, 1994. He opined that the applicant's pain in his left hip, which he diagnosed as being from avascular necrosis, was aggravated when the applicant pumped the clutch in his delivery truck at work, and by carrying heavy packages, particularly upstairs. He also described his treatment of the disabling condition, including core decompression surgery and total hip replacement surgery.

Dr. Kitzman reported that he did not know if work directly caused applicant's disability. However, he went on opine that the applicant's disability was caused by aggravation, acceleration and precipitation beyond normal progression and by an appreciable period of workplace exposure that was at least a material contributory factor in the condition's onset or progression. He rated permanent disability at 50 to 60 percent compared to amputation of the left leg at the hip. He recommended the applicant not return to truck driving.

Dr. Kitzman supplemented his opinion by letter dated May 1, 1995. He explained:

"The cause of osteonecrosis (avascular necrosis) of the femoral head is multifactoral, in which the bony tissue becomes progressively `sick' and therefore stressed. In my professional opinion, once osteonecrosis occurs, events that would increase the stress or load on the already `sick' hip would cause the disease to progress at an accelerated rate beyond normal progression.
. . .
"Lifting and/or carrying an object increases your body weight by the amount of weight of that object. In my professional opinion, jumping out of the UPS truck, lifting, and carrying heavy objects up inclines and stairs would put increased stress on a hip that would not be there if the person did not engage in these activities. Therefore, I feel Mr. Klemp's job as a UPS driver and delivery man, accelerated the rate of progression of the osteonecrosis in his left hip."

Exhibit H, Kitzman letter of May 1, 1995.

The respondent provides the contrary expert medical opinion of David R. Zeman, M.D. Dr. Zeman also diagnosed avascular necrosis of the left femoral head, post-total hip replacement, for which he rated permanent disability at 50 percent compared to amputation of the leg at the left hip. He concludes that the applicant's physical complaints were a manifestation of that pre- existing condition, and not caused by work.

Dr. Zeman explains:

"In my impression, Mr. Klemp has developed avascular necrosis of his left hip. There is a known association of avascular necrosis with alcoholism. He does not have other known predisposing factors applicable including exposure to steroid medications and also exposure to a pressurized work environment. This avascular necrosis is to a reasonable degree of medical probability an underlying condition which pre-existed the development of disabling pain in 1993."

Exhibit 2, page 6. Dr. Zeman also set out some work restrictions which he opined were due entirely to the left hip problem.
The respondent also submitted a supplemental report from Dr. Zeman dated June 12, 1995. The supplemental report is aimed directly at Dr. Kitzman's May 1 letter, quoted above. In his supplemental report, Dr. Zeman states:

"I find Dr. Kitzman's assertion that osteonecrosis is caused by a `sick' hip, which is therefore stressed, to be in error. Osteonecrosis of the femoral head is neither known nor suspected to be caused by any sort of defined ergonomic stress on the hip, including motion of physiologic forces.

"Dr. Kitzman also mentions a list of factors which he feels can be related to aggravation of symptoms. . . . These activities include flexion of the hip, arising from a chair, ascending and descending stairs or an incline, or lifting. These are all activities which are commonly done during ordinary life.
. . .
"Dr. Kitzman also does not state that the total hip replacement would not have been necessary in the absence of such employment activities. In fact, to a reasonable degree of medical probability, patients with osteonecrosis of the femoral head do require hip replacements, virtually regardless of their occupational activity."

Exhibit 8, Zeman report dated June 12, 1995.

Dr. Zeman's supplemental report triggers one last response from treating doctor Kitzman by letter dated March 3, 1996. Dr. Kitzman points out that he never claimed osteonecrosis was caused by a "sick hip." Rather, he stated that once osteonecrosis was present the hip became progressively more "sick," therefore more vulnerable to damage from repeated physical stresses to the hip that would accelerate the rate of progression of the condition. He also pointed out that the physical stresses to the hip from being a UPS driver go beyond those present in everyday life. In addition, the commission notes that Dr. Kitzman did not report that these activities merely "aggravated symptoms" as Dr. Zeman inaccurately stated; in his May 1 letter Dr. Kitzman said the activities accelerated the progression of the condition in the applicant's hip.

Finally, Dr. Kitzman quoted a publication of the American Academy of Orthopedic Surgeons which states:

"In vivo, cyclic changes in interosseous pressure may play a major role in the remodeling, profusion, and load transmission of bone. In addition, load-induced pressure pulses may play a role in the development of atraumatic osteonecrosis."

Exhibit H, Kitzman letter dated March 3, 1996.

The main issue here is whether the applicant's duties as a UPS driver are causally related to his disability. Legal causation in worker's compensation generally takes one of three forms: a traumatic event which directly causes injury; a work event or work exposure that precipitates, aggravates and accelerates a pre-existing degenerative condition beyond its normal progression; or an appreciable period of workplace exposure which is at least a material contributory causative factor in the onset or progression of a disabling condition. The conceptual similarity, at least in certain cases, between the second and third causative theories was recognized by the court of appeals in Shelby Mut. Ins. Co. v. DILHR, 109 Wis. 2d 655, 663 (Ct. App., 1982).

Dr. Kitzman clearly stated he did not know if work directly caused the onset of avascular necrosis. Rather, he states that after process of avascular necrosis began, by whatever mechanism, the physical stress to the weakened hip caused by the applicant's duties as a UPS driver (carrying heavy objects, particularly up stairs and jumping out of the delivery van) accelerated the progression of the disease. This narrative explanation is completely consistent with causation either of the alternative theories regarding causation given by Dr. Kitzman on the front page of his practitioner's report on form WC-16-B.

The commission sees at least three reasons for crediting Dr. Kitzman's opinion that the applicant's work activities actually aggravated, accelerated and precipitated the avascular necrosis beyond its normal progression or were at least a material contributory factor in that condition's onset or progression. First, Dr. Kitzman's explanation on that point makes sense. Second, the doctor cites the publication from the American Academy of Orthopedic Surgeons to support that opinion.

Third, Dr. Zeman's expert opinion does not really deny that physical stress could accelerate the progression of the disease, but reiterates that the stress could not have caused its onset. Basically, Dr. Zeman refutes a position that no one has taken. Dr. Zeman then goes on to note that the applicant would have eventually needed a hip replacement anyway. However, Wisconsin workers compensation law does not apply this kind of "but for" causation test.

In sum, on this record, the ALJ correctly concluded that the applicant's injury to his hip (and resulting disability and need for treatment) arose out of his employment with the employer while performing services growing out of and incidental to that employment.

b. The back condition.

The applicant's back problems are another matter. Dr. Durette does opine that the applicant's work as a delivery truck driver was an appreciable period of workplace exposure which was at least a material contributory causative factor in the onset or progression of his degenerative arthritis and low back pain. However, none of the notes he attaches to the practitioner's report setting out that opinion explain how. See exhibit A, Durette's practitioner's report dated July 28, 1994.

For an explanation, we must turn to Dr. Durette's June 27, 1994 letter in exhibit G. This points out that a June 20, 1994 CT scan showed degenerative arthritic changes at multiple levels in the applicant's lumbar spine. Dr. Durette states that chiropractic treatment beginning in 1981 indicates a history of gradual development with years of lifting and bending. He contends that this is separate from the hip pain (and presumably the buttocks and leg pain) which Dr. Odulio also opined was not related the degenerative changes in the spine.

Dr. Zeman opined in his February 10, 1995 report that the applicant had nonspecific low back pain. He noted no injury correlating to its onset. He disagreed with the permanent partial disability rated by Dr. Durette at five percent compared to disability to the whole body, as he found nothing to "indicate that there was a permanent condition involved." He thought whatever back pain there was more related to the hip problem.

The applicant, of course, has the burden of proving all the facts essential to compensation, including the chain of causation between the applicant's work and his injury. The commission must deny compensation if left with a legitimate doubt regarding the facts necessary to establish a claim. This does not mean the commission may rely on its "cultivated intuition" to find legitimate doubt. Rather, there must be some inherent inconsistency in the record before the commission is warranted in entertaining a legitimate doubt. Leist v. LIRC, 183 Wis. 2d 451, 457-58 (1996).

In this case, of course, the fact that the respondent has provided an expert medical opinion refuting Dr. Durette's opinion takes this case beyond the realm of cultivated intuition. Leist, at 183 Wis. 2d 461. The next question is whether the conflict in expert medical opinion creates a legitimate doubt given the record in this case. The commission concludes it does.

First, the applicant's back pain, at least early in the course of the applicant's treatment with Dr. Durette was either not present or described as intermittent. The fact is, the applicant was referred to Dr. Durette for the hip/buttocks pain, not back pain. The back pain is first mentioned in June 1994, several months after the applicant stopped working, and in January 1995 is described as "mild." Exhibits A and 3.

Given these facts, the commission agrees with the ALJ that Dr. Durette is only guessing that work caused the degenerative arthritic changes in the applicant's back. All the record establishes is mild pain, arising months after the applicant stopped working, and a history of a few chiropractic treatments spread out from 1981 to 1992. See Exhibit E. However, the simple fact that the applicant had prior chiropractic treatment while he was still working is not particularly convincing evidence that work caused the arthritic changes now present in the applicant's back. Moreover, the commission notes that Dr. Odulio's opinion is qualified at best on the issue of whether the degenerative arthritis in the spine caused any disability.

c. Applicability of Hagen v. LIRC

This brings us to the applicant's claim that we have to apply the court of appeals' holding in Hagen v. LIRC, supra, and proceed to the issue of loss of earning capacity based on the disability to the applicant's hip. In Hagen, the court of appeals essentially held that a shoulder disability was not "scheduled" and should not have been rated by comparison to amputation of an arm at the shoulder under the schedule in sec. 102.52, Stats. Rather, the court found the disability was "unscheduled," and so should have rated by comparison to disability to the body as a whole which includes a rating for loss of earning capacity.

In this case, the ALJ made his order interlocutory to permit a loss of earning capacity claim, should Hagen be affirmed by the supreme court. The applicant contends the order should not have been left interlocutory, but that the ALJ should have proceeded to rate unscheduled disability for his hip according to the court of appeals holding in Hagen.

The most obvious response is that Hagen involved a shoulder disability, while this case involves disability at the hip. However, the department has indicated that the Hagen rule would apply to hip cases, too. (1) So the commission is reluctant to reject the applicant's argument on this basis alone.

However, when it suggested that the Hagen holding would apply to hip cases, the department set out a policy for dealing with Hagen-like claims while the case is on appeal to the supreme court. Specifically, the worker's compensation division has directed its ALJs to make awards for hips based on the schedule, while keeping the order interlocutory for unscheduled awards pending a supreme court decision in Hagen. (2)

One might contend that the worker's compensation division should decide hip and shoulder cases as unscheduled disabilities, consistent with Hagen, and retain jurisdiction to re-decide them as scheduled injuries if the supreme court reverses Hagen. On the other hand, the division could probably have withheld decision in all of such cases until Hagen was decided. Of the alternative courses, the one chosen by the division seems the most sensible, and the commission has followed the division's policy in recent decisions. (3)

Moreover, the case cited by the applicant in connection on this issue, Zintek v. Perchik, 163 Wis. 2d 439 (Ct. App., 1991) does not really address the problem faced by the division. In Zintek, the court of appeals did say its published decisions, whether right or wrong, were precedent until the supreme court holds to the contrary. Zintek, at 163 Wis. 2d 468-69. However, when making that statement in Zintek, the court referred to a case in which the petition for review had long since been denied by the supreme court. See: State ex. rel Klieger v. Alby, 125 Wis. 2d 468 (Ct. App. 1985). On the other hand, the supreme court has granted the petition for review in Hagen.

Finally, neither the division nor the commission are simply ignoring Hagen. Rather, both agencies are simply acting in a manner that is the most efficient and fair during the short period the case is on review.

d. Calculation of PPD award.

Until Hagen is decided by the supreme court, then, the department and the commission will treat hip injuries as "scheduled disabilities," while retaining jurisdiction should the supreme court conclude otherwise. In this case, Dr. Kitzman rated disability to the applicant's hip at 50 to 60 percent compared to amputation of the leg at the hip, while Dr. Zeman gave a 50 percent rating compared to amputation. The commission also notes that, according to sec. DWD 80.36 (3), permanent partial disability for a total hip prosthesis is a minimum of 40 percent compared to amputation. The commission concluded that a fifty percent rating was most reasonable in this case.

Under sec. 102.52 (10), Stats., an injured worker is entitled to 500 weeks of permanent partial disability for amputation of the leg at the hip. A fifty percent loss for at the hip compensable at 250 weeks. The commission accordingly amended the ALJ's order.

PAMELA I. ANDERSON, CHAIRMAN, (Dissenting):

I am unable to agree with the result reached by the majority herein and I dissent. I found Dr. Zeman to be more credible on the cause of the avascular necrosis of the hip. Avascular necrosis is caused by the interruption of the blood supply to the bone. One of the predisposing factors is alcoholism. The applicant had alcohol-related treatment ten years ago. The majority quotes from the American Academy of Orthopedic Surgeons but that quotation merely says that "load-induced pressure pulses may play a role in the development of atraumatic osteonecrosis." I think that is speculative since it does not say it is to a reasonable medical probability. I do believe that the applicant's symptoms could be worse with walking. I do agree with the majority that the back problem is speculative. Therefore, I would reverse on the hip condition and find that it was not compensable.

Pamela I. Anderson, Chairman

cc: ATTORNEY JOHN H SCHIEK
OMELIA SCHIEK & MC ELDOWNEY SC

ATTORNEY PETER S NELSON
MENN NELSON SHARRATT TEETAERT & BEISENSTEIN LTD


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Footnotes:

(1)( Back ) See Memo from Gregory Krohm to Worker's Compensation Carriers and Self-insured Employers, re: "Division's Policy Relating to Hip and Shoulder Injuries while the Case of Hagen v. LIRC is on Appeal to the Supreme Court," reference no. INS 349 (June 21, 1996).

(2)( Back ) Krohm memo, footnote 1, supra.

(3)( Back ) See: Shirley Nickell v. Kewaunee County, WC claim no. 94-064155 (September 24, 1996).