Mark Wittstock v. McPhillips Bros. Roofing Co.

Mark Wittstock v. McPhillips Bros. Roofing Co., WCCA, Jan. 9, 2013, No. WC12-5471.

The issues in this case are whether there was substantial evidence to find that the employee
sustained a Gillette-type low back injury culminating on or about his last date of employment
– the date of an economic layoff on December 21, 2009 – and whether there was substantial
evidence for the compensation judge to adopt equitable apportionment between the Gillette
injury and an earlier 1997 injury in which the employee sustained no permanent partial
disability, was given MMI two months after that injury, and returned to work without

The WCCA affirmed the decision of the compensation judge and did go through the testimony
and record with regard to the employee working as a roofer for approximately 29 years. He
worked for McPhillips Bros. Roofing Co. from 1991 until December 21, 2009. He did mainly
roofing duties, except for when he was a foreman from 1998 onward, but still did roofing
activities 90 percent of the time. The court does a nice job of laying out the foundation for a
Gillette opinion with regard to the significant work activities that a roofer does on a daily basis.

The employee’s testimony is that he had some low back pain prior to being laid off, but then
when he was doing sit ups at his home in January of 2010, during his layoff, he felt immediate
pain in his low back and reported to a chiropractor, but the chiropractor did not offer a treatment
plan and instead told the employee to see an orthopedist. The employee had heard about Dr.
Thomas Rieser of Midwest Spine Institute from a cousin and then self-referred to Dr. Rieser.

Dr. Rieser obtained an MRI of the employee’s low back, discography, and then ultimately
recommended an L4-5 and L5-S1 anterior and posterior discectomy and fusion.

The Employee filed a claim petition and subsequently the employer and insurer obtained an
IME from Dr. Norgard, who opined that the Employee’s low back condition was all due to his
preexisting degenerative joint disease and degenerative disc disease, and that he sustained no
Gillette injury due to his roofing work activities at McPhillips Bros. Roofing Co.

Dr. Norgard did not dispute the Employee being temporarily totally disabled from April 27, 2010
through May 24, 2011, nor did he dispute that the treatment was reasonable and necessary.

The judge found a Gillette injury culminating on or about December 21, 2009, and apportioned
the low back condition 30 percent to a 1997 injury at the employer and 70 percent to the Gillette

The employer and insurer appealed both the determination that there was a Gillette injury and the
apportionment between the prior injury. The WCCA found that there was substantial evidence
to find a Gillette injury based on Dr. Rieser’s narrative report and the compensation judge made
a factual determination after weighing the medical evidence and the testimony at hearing and
that a Gillette injury occurred. Further, the WCCA found that the compensation judge did have
substantial evidence to find 30 percent equitable apportionment to the Employee’s 1997 injury, based on Dr. Riser’s narrative report, which provided that apportionment even although the
employee did return to work, had work restrictions, and was placed at MMI with no permanent
partial disability after that injury. The court noted that the employee had ongoing intermittent
pain over the decade following that 1997 injury, even though he did not seek treatment for it and
this was a change from prior to that injury.

Finally, the court affirmed the determination made by the compensation judge that the last date
of work at the employer was the culmination date for a Gillette injury. The court noted that case
law permits a finding of the last day of employment, even if not due to a disability and due solely
to an economic layoff, as an appropriate date of culmination for a Gillette injury given the nature
of a Gillette injury, which requires microtrauma that occurs every day that the employee works
in his usual capacity.