State of Wisconsin

Labor and Industry Review Commission

Emiliano Flores Worker’s Compensation

Applicant Decision 1

Maas Bros. Constr. Co., Inc.

Employer Dated and Mailed:

West Bend Mut. Ins. Co. September 30, 2019

Insurer floreem_wsd.doc:190

Claim No. 2016-015331

Interlocutory Order
The commission affirms in part and reverses in part the decision of the
administrative law judge. Accordingly, within thirty (30) days from the date of this
order, the respondent shall pay for the dental treatment expenses (crowns) for the
applicant’s teeth #s 10, 23, 24, and 25.

Jurisdiction is reserved for such further findings and orders as may be necessary
consistent with this order.

By the Commission:
/s/
Michael H. Gillick, Chairperson

/s/
David B. Falstad, Commissioner

/s/
Georgia E. Maxwell, Commissioner

1Appeal Rights: See the yellow enclosure for the time limit and procedures for obtaining judicial review
of this decision. If you seek judicial review, you must name the following as defendants in the summons
and the complaint: the Labor and Industry Review Commission, and all other parties in the caption
of this decision or order (the boxed section above). Appeal rights and answers to frequently asked
questions about appealing a worker’s compensation decision to circuit court are also available on the
commission’s website, http://lirc.wisconsin.gov.
 Procedural Posture
In June of 2016, the applicant filed a hearing application seeking compensation for
injuries to his teeth, chin, lips, and neck, with a date of injury of October 20, 2015.
An administrative law judge for the Department of Administration, Division of
Hearings and Appeals, Office of Worker’s Compensation Hearings, heard the matter
on September 5, 2018, a nd issued a decision dated January 23, 2019, adopting a tie
breaker opinion, and finding the respondent liable for dental treatment expenses
(crowns) for injuries to seven pf the applicant’s teeth. The respondent filed a timely
petition for review.

Prior to the hearing, the respondent conceded a work injury to one tooth (#10). The
issues are whether the applicant sustained traumatic injuries to more than one tooth,
and the respondent’s liability for dental treatment expenses. The commission has
considered the petition and the positions of the parties, and has independently
reviewed the evidence. Based on its review, the commission affirms in part and
reverses in part the decision of the administrative law judge, and makes the
following:

Findings of Fact and Conclusions of Law

1. Prior to the work incident, the applicant had fillings in his teeth, some teeth
pulled, a root canal, and a crown. 2 On March 3, 2015, the applicant’s dentist,
Dr. Jarrod B. Thomas, D.D.S., had taken an upper impression for a
mouthguard. 3 The medical note does not indicate why, but the applicant
indicated that this was because he would grind his teeth. 4

2. On October 20, 2015, the applicant was working for the respondent and
installing rebar. When he was pushing on some rebar, he slipped and fell
forward:

My feet came slipped out from underneath me on the slick slurry

that we poured the day before, and it happened so fast my hands
couldn’t…did not…were not able to get in front of my face so I
smashed my face on to the ground, the concrete slurry and the
rebar. I, you know, it hit pretty hard so I don’t know if I blacked
out or not but I was dazed. 5

The applicant had blood dripping from his face and went to the mirror of his
pickup truck where he noted a laceration on his chin and lips. 6 He cleaned up
and continued to work, but could not remember if he worked a full day. 7 When
he returned home he realized that he had chunks of teeth in his lips, which he

2 Transcript of Proceedings dated September 5, 2018 (Tr.), pp. 17-18.

3 Exhibit (Ex.) 5.
4 Tr., p. 15.
5 Tr., p. 8.
6 Tr., p. 8.
7 Tr., p. 9.

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 picked out. 8 He called his dentist the next day. 9 The applicant thought that all
of the teeth were chipped in the accident, and one tooth was chipped severely
and perhaps cracked in half. 10

3. The applicant first treated with his dentist, Dr. Thomas, on October 22, 2015.
On a sheet entitled “Accident Report,” the applicant described how the accident
happened as “Face plant onto rebar and concrete.” 11 In response to the
question, “How were you hurt?” he responded, “Mouth Jaws Teeth.” 12 He
indicated that his present complaints were “teeth hurt, one tooth broke.” 13
Dr. Thomas noted that the applicant reported tooth pain on his upper and
lower arch that kept him up at night. He noted the applicant had a laceration
on the left inferior border of his mandible and left lower lip laceration, from
which the applicant had removed several tooth fragments. He also noted that
the applicant was aware he likely sprained his periodontal ligaments, but
healing following trauma was unpredictable and the applicant may need root
canals in the future. Dr. Thomas took x-rays and stated:

Pt. sheared off linguals of 7, 8, 9, 10 and had MIDFL enamel

fracture on 23, 24, 25. Fractures on 7, 8, 9, 10, 23, 24, 25 are into
dentin. Pt. also fractured incisal enamel on 22/27. Recommended
crowns on 7, 8, 9, 10, 23, 24, 25 and polishing on 22, 27. 14

4. Dr. Thomas put temporary crowns on the applicant’s teeth, and on October 30,
2015, he installed the permanent crowns on teeth #s 7, 8, 9, 10, 23, 24, and 25.
On October 30, 2015, Dr. Thomas noted that the applicant had an excellent
long-term prognosis, but the applicant understands that it is possible in the
future he would need root canals due to the trauma that had occurred. 15 A chip
on one of the crowns was later fixed in April of 2016.

5. The applicant submitted a WKC-16-B from Dr. Thomas dated May 16, 2016. 16
Dr. Thomas opined that the work incident directly caused the applicant’s
disability, and he attached his clinical notes. The applicant also submitted a
WKC-16-B from Dr. Thomas dated December 22, 2017. 17 At that time,
Dr. Thomas opined that the work incident directly caused the applicant’s
injury, which he described as a lower lip laceration on right and left side, with
embedded teeth fragments and fractured teeth #s 7, 8, 9, 10, 23, 24, and 25. He

8 Tr., p. 9.
9 Tr., pp. 9, 11.
10 Tr., p. 19.
11 Ex. 4.
12 Ex. 4.
13 Ex. 4.
14 Ex. 5.
15 Ex. 5.
16 Ex. B.
17 Ex. A.

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 also noted that all teeth were traumatized due to slamming of the applicant’s
jaw and teeth: “Thankfully, only seven teeth fractured.” 18

6. When the applicant realized that he could not rely on the medical report from
Dr. Thomas, a dentist, to prove causation, the applicant saw a medical doctor
at his clinic, Dr. Chris Kleppe, who provided a WKC-16-B dated December 20,
2016. 19 Dr. Kleppe indicated that he treated the applicant, but not for this
injury. He opined that the work incident directly caused the applicant’s
disability, and referenced the clinical notes from Dr. Thomas.

7. Dr. Thomas referred the applicant to Dr. Shane C. Connor, D.D.S., M.D., of
Oral & Maxillofacial Surgery Associates, who provided a WKC-16-B dated
September 5, 2018. 20 Dr. Connor reviewed the applicant’s dental records and
x-rays, and examined the applicant, but indicated that he did not treat the
applicant. In a letter attached to the WKC-16-B, Dr. Connor stated that after
carefully reviewing the records, he felt that the applicant’s injury caused
fracturing of teeth #s 7, 8, 9, 10, 23, 24, and 25. “According to Dr. Thomas’s
notes there was significant damage to tooth #10 as well as to teeth #’s 7, 8, and
9 involving the mesial, incisal, distal, facial and lingual of the enamel
fracturing down to the dentin of the tooth. The same could be said for teeth #’s
23, 24, and 25.” 21 He noted that Dr. Thomas’s previous notes do not reveal any
issues with those seven teeth prior to the traumatic accident, “and the only
indication that he has for the patient potentially having wear on his teeth
would be that he took an upper alginate impression for a mouth guard, for
what he did not indicate.” 22 Dr. Connor did not agree with Dr. Sciascias’s
assessment that teeth #s 23, 24, and 25 had a pattern of occlusal wear. He
noted that the teeth in the picture had a “very jagged appearance, which is
consistent with trauma, and is consistent with the pattern you see on tooth
#10.” 23 He could not say to what extent the damage was on teeth #s 7, 8 and 9,
but it was his clinical opinion that teeth #s 10, 23, 24, and 25 all required full
coverage crowns to restore them to a pre-traumatic state.

8. At the respondent’s request, Dr. Anthony M. Sciascia, D.D.S., reviewed the

applicant’s dental records and prepared a WKC-16-B dated October 8, 2018. 24
Dr. Sciascia opined that the appearance of tooth #10 was consistent with a
traumatic injury and the tooth was fractured to the extent that a crown was
warranted, however, none of the other teeth showed obvious trauma, though
he noted that “Some of the other edges, #8 and #7 in particular show typical
chipping of the thin enamel border around the worn dentin.” 25 He opined that

18 Ex. A.
19 Ex. C.
20 Ex. D.
21 Ex. D.
22 Ex. D.
23 Ex. D.
24 Ex. 1.
25 Ex. 1.

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 none of the treatment except the crown on #10 could be considered related to
the workplace incident.

9. The respondent also sought the medical opinion of Dr. Scott Hoyer, D.D.S.,
M.S., an oral and maxillofacial surgeon. Dr. Hoyer reviewed the applicant’s
dental records and prepared a letter opinion and WKC-16-B dated October 12,
2018. 26 Dr. Hoyer opined that the dental trauma to tooth #10 was caused by
the workplace injury, however, the damage associated with the other teeth was
associated with a preexisting condition of dental wear due to the applicant’s
deep bite and bruxism (teeth grinding). According to Dr. Hoyer, the work
incident did not precipitate, aggravate, or accelerate the preexisting condition.

10. The respondent also submitted a records review and WKC-16-B dated
September 10, 2018, from Dr. Michael Ritter, D.O. 27 Dr. Ritter found that the
history and images supported a traumatic fracture to tooth #10, but the other
changes were preexisting and a result of the applicant’s large overbite and
bruxism. Only the crown for tooth #10 was necessary to relieve the effects of
the work injury.

11. At the request of the administrative law judge, Dr. Carolyn C. Brookes, M.D.
(Oral Surgery), reviewed the applicant’s medical records, examined the
applicant, and prepared a tiebreaker medical opinion and WKC-16-B dated
February 28, 2019. 28 Dr. Brookes noted on the WCK-16-B that she treated the
applicant on December 3, 2018 only. Under question #11, asking if it is
probable that the work event directly caused the disability, Dr. Brookes wrote
“partially – see note.” Under question #12, asking if it is probable that the work
event caused the disability by precipitation, aggravation, and acceleration of
the applicant’s preexisting degenerative condition, she checked “yes” but wrote
“—potentially, see note.” Under question #13, asking if the applicant suffers
from a condition caused by an appreciable period of workplace exposure, she
checked “no” but wrote, “—though see note.” She opined that no further
treatment would be necessary.

12. In her attached medical note from December 3, 2019, Dr. Brookes noted that
she reviewed Dr. Thomas’s notes. She noted that Dr. Thomas had initially
described the fracture of tooth #10 and described that the linguals of #7-10 had
sheared off. She noted that it was difficult to assess the need for crowns when
comparing previous x-rays. The applicant had longstanding erosion/dental
wear that predated his trauma and appeared to have sustained trauma to at
least tooth #10. She stated that it was “difficult to assess whether the described
fractures were acute and trauma related or longstanding due to excessive
dental wear.” 29 The best way to determine this, according to Dr. Brookes, would

26 Ex. 2.
27 Ex. 3.
28 Joint Ex. 1.
29 Joint Ex. 1.

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 be by evaluation of the applicant’s occlusion and dental contacts during
maximum intercuspation as well as excursive movements. Dr. Brookes opined:

Based on the available information it appears the patient had

longstanding erosion/wear of his dentition that predated the
trauma. There was a crown fracture on #10 sustained during the
injury and there was likely additional trauma to the remaining
incisors. The remaining crowns (on #7-9 and the lower incisors)
were likely placed primarily due to longterm wear. Ultimately,
though, Dr. Thomas was the only dentist who had the opportunity
to see the teeth both before and after the trauma and to assess
the patient’s occlusion at the time of presentation; it therefore
seems prudent to defer to his judgment about the contribution of
the dental trauma to the patient’s fractured teeth. 30

13. The commission credits Dr. Connor that that work injury fractured the
applicant’s teeth, and that teeth #s 10, 23, 24, and 25 required full coverage
crowns to restore them to a proper pre-traumatic state. Based on Dr. Connor’s
credible opinion, and the opinions of Dr. Brookes, Dr. Hoyer, and Dr. Ritter,
the commission has legitimate doubts whether the applicant’s injuries
required the need for crowns on teeth #s 7, 8, and 9.

14. Accordingly, the commission affirms that part of the administrative law judge’s
decision that found the respondent liable for the crowns for the applicant’s
teeth #s 10, 23, 24, and 25. The commission reverses that part of the decision
that found the respondent liable for the crowns for the applicant’s teeth #s 7,
8, and 9. 31

Memorandum Opinion
The applicant, who was born in 1975, slipped and fell at work, hitting his face on
concrete and rebar. He claimed that the fall caused fractures to seven of his teeth
that required repair with crowns. The applicant had crowns put on all seven teeth
and seeks payment for the dental treatment expenses. The respondent conceded the
work injury, and that the applicant injured one tooth; however, the respondent
alleges that the additional dental work was done to treat the applicant’s long-
standing erosion and dental wear to his teeth and not the work injury. The
respondent paid for the dental treatment expenses ($8,569.10), but alleged that this
was paid under mistake of fact.

30Joint Ex. 1.
31The commission did not consult with the administrative law judge since the decision to reverse is
based on the credibility of the medical experts, none of whom testified. See Hermax Carpet Marts v.
LIRC, 220 Wis. 2d 611, 617-618, 583 N.W.2d 662 (Ct. App. 1998).
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Analysis
The issues are the nature and extent of the applicant’s injuries, and the respondent’s
liability for medical expenses, i.e., the crowns. The applicant has the burden of
proving beyond a legitimate doubt all the facts necessary to establish a claim for
compensation. 32 The commission must deny compensation if it has a legitimate doubt
regarding the facts necessary to establish a claim, but not every doubt is
automatically legitimate or sufficient to deny compensation. 33 Legitimate doubt must
arise from contradictions and inconsistencies in the evidence, not simply from
intuition. 34

The respondent argues that the administrative law judge improperly relied on the
“treating physician rule” in reaching his decision. The administrative law judge relied
on the opinion of the tiebreaker doctor, Dr. Brookes; however, Dr. Brookes specifically
deferred to the applicant’s treating dentist. According to the respondent, Dr. Brookes
ignored all of the objective evidence indicating that the crowns were put on the
applicant’s teeth due to his preexisting condition. The applicant was a longtime
tobacco chewer with a history of grinding his teeth to the point of needing a mouth
guard. The respondent argues that Dr. Brookes’ opinion relying on Dr. Thomas solely
because he was the treating physician is contrary to Wisconsin law because Wisconsin
has rejected the treating physician rule which accords special credibility to treating
physicians. As a result, the applicant failed to meet his burden to prove injury to all
of the teeth.

The respondent also argues that Dr. Brookes’ opinion is insufficient to sustain a
finding that the crowns were necessary because she did not state her opinions to a
reasonable degree of medical certainty. In this case, Dr. Brookes stated that the
crowns were “likely” placed due to long-term wear. She did not opine that the work
incident likely caused the injuries or aggravated the applicant’s preexisting condition.
She only indicated that the fall “potentially” aggravated his preexisting condition.
The respondent argues that the commission should disregard Dr. Brookes’ opinion
because it does not satisfy Wisconsin’s standard for a medical report.

The commission also should not rely on any of the other medical opinions provided by
the applicant, according to the respondent. Dr. Thomas is a dentist and his report is
inadmissible for causation and extent of disability under Wis. Stat. § 102.17(1)(d).
Dr. Kleppe opined that the work incident caused the applicant’s disability, but
specified that he did not treat the applicant and did not specialize in this area.
Dr. Kleppe also had a misunderstanding of the mechanism of injury because he
thought the applicant fell while pushing a wheelbarrow. Additionally, there is no
evidence that Dr. Kleppe reviewed the applicant’s prior dental records or x-rays.
Dr. Connor’s opinion also was based on an inaccurate history because he relied on

32 Leist v. LIRC, 183 Wis. 2d 450, 457, 515 N.W.2d 268 (1994); Erickson v. DILHR, 49 Wis. 2d 114,
118, 181 N.W.2d 495 (1970).
33 Erickson, supra, at 119; Leist, supra, at 457.
34 Erickson, supra; Richardson v. Indus. Comm’n, 1 Wis. 2d 393, 396-97, 84 N.W.2d 98 (1957).

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Dr. Thomas’s treatment notes that did not reveal any issues with his teeth prior to
the injury.

The respondent’s medical experts are more credible, according to the respondent.
Dr. Sciascia, a dentist, opined the work incident caused a fracture to tooth #10 which
required a crown; he opined that none of the other teeth showed signs of traumatic
injury. Dr. Hoyer opined that the work incident injured tooth #10, but the damage to
the remaining teeth was preexisting. Dr. Ritter also opined that the work incident
caused a traumatic fracture to tooth #10, but the changes to the remaining teeth were
preexisting and resulted from the applicant’s large overbite and bruxism. Based on
these credible medical opinions, the respondent argues that the commission should
reverse the decision of the administrative law judge.

The applicant, pro se, responds and asserts that on the day of the injury, he
immediately noticed a broken tooth, incredible pain on multiple teeth, and multiple
tooth fragments embedded in his lips. He points out that on the accident report he
filled out when he saw Dr. Thomas, he wrote “Mouth, Jaw, Teeth,” and “Teeth hurt,
one tooth broke.” As a non-dentist, he could not see the chips and fractures in the
other teeth depicted on the x-rays. He notes that Dr. Sciascia, Dr. Ritter, and
Dr. Hoyer never examined him in person. If Dr. Thomas’s opinion cannot be credited
because he is a dentist, as the respondent argues, then the reports of Dr. Sciascia and
Dr. Hoyer should not be credited because they are also dentists. By contrast, both
Dr. Connor and Dr. Brookes evaluated the applicant in person. He notes that the fact
that he had been fitted for a mouthguard in the past is irrelevant because providing
dental patients with mouthguards for nighttime clenching is common. The applicant
also argues that the fact that he has an overbite may have contributed to the number
of teeth that were fractured but it is a moot point because his overbite did not cause
his teeth fractures. He points out that Dr. Brookes stated that there was no evidence
that his teeth fractures were a result of his pre-accident dental history or smokeless
tobacco. 35 The administrative law judge reasonably relied on Dr. Brookes’ opinion,
according to the applicant, because she got to know his mouth intimately by reviewing
his pre- and post-injury dental records and by evaluating him in person.

After carefully reviewing the evidence, the commission finds that though Dr. Thomas
provided the treatment to the applicant, as a dentist, the commission cannot rely on
his opinion to make findings as to the cause and extent of the applicant’s disability. 36
Dr. Kleppe is a medical doctor, but he did not provide a strong opinion and specifically
noted that he did not treat the applicant for the dental issues. Dr. Connor provides
the most persuasive opinion for the applicant. He is a medical doctor who reviewed

35 The applicant also notes that the transcript of the hearing erroneously states that he chewed 10½

tins of tobacco per week, when in fact he chews 1½ tins per week. Applicant’s Brief, p. 3.
36 Wisconsin Stat. § 102.17(1)(d) provides, in relevant part, “Certified reports of physicians, podiatrists,

surgeons, psychologist, and chiropractors are admissible as evidence of the diagnosis, necessity of the
treatment, and cause and extent of the disability. Certified reports by doctors of dentistry, physicians
assistants, and advanced practice nurse prescribers are admissible as evidence of the diagnosis and
necessity of treatment but not of the cause and extent of disability.”
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the medical records and x-rays and examined the applicant. He opined that the work
incident caused fractures in the applicant’s teeth that required crowns, but he could
not determine the extent of the damage on teeth #s 7, 8, and 9; he did opine that the
injury necessitated the crowns for teeth #s 10, 23, 24, and 25. According to Dr.
Connor, the work incident caused fractures to the applicant’s teeth, but he opined
that only teeth #s 10, 23, 24, and 25, required full coverage crowns to restore them
to a proper pre-traumatic state.

The administrative law judge sought a tiebreaker opinion in this case, and relied on
that opinion, but there are problems with Dr. Brookes’ opinion. First, however, the
commission notes that Dr. Brookes did not simply defer to the applicant’s “treating
physician.” Wisconsin has rejected the “treating physician rule” whereby treating
physicians would be accorded special credibility. 37 Rather, Dr. Brookes gave her
opinion that the best way to assess the fractures, to determine if they were acute and
trauma-related or longstanding due to excessive wear, would be by evaluation of the
occlusion and dental contacts and excursive movements. She noted that Dr. Thomas
was in the best position to determine this—not because he was the applicant’s
treating doctor—but because he was the only one who saw the applicant’s teeth both
before and after the trauma and could see the occlusion at the time of presentation.
Therefore, the Dr. Brookes did not simply give special credibility to the treating
doctor.

However, there are other problems with Dr. Brookes’ opinion in how she completed
the WKC-16-B and qualified her opinion. She opined that the work incident only
“partially” directly caused the work incident, which is unclear because there are
several teeth involved. She also said that the work incident “potentially” aggravated
a preexisting condition. This is conjecture and not an opinion to a medical degree of
certainty. The commission cannot base a finding of fact on conjecture. 38 Courts have
accepted “liable,” “likely,” and “probable” as words connoting reasonable probability;
but courts have not accepted the word “perhaps” because it denotes possibility rather
than probability. 39 “Potentially” is similar to “perhaps.” Since there are several teeth
involved, Dr. Brookes’ opinion does not provide a clear causation opinion for each of
the applicant’s teeth.

The commission finds that the evidence shows that the applicant seriously injured
more than just tooth #10 in the work incident. The applicant fell hard, face down onto
cement and rebar; he reported pain in his “teeth” initially, though he identified one
as broken; he credibly testified that he had to pull teeth fragments out of his lip; and
Dr. Thomas initially noted that the applicant had sprained his periodontal ligaments.
As a result, the commission does not credit Dr. Hoyer and Dr. Ritter that the

37 Conradt v. Mt. Carmel Sch., 197 Wis. 2d 60, 68-70, 539 N.W.2d 713 (Ct. App. 1995).
38 Shymanski v. Indus. Comm’n, 274 Wis. 307, 314, 79 N.W.2d 640 (1956).
39 Unruh v. Indus. Comm’n, 8 Wis. 2d 394, 401, 99 N.W.2d 182 (1959); see also Skoug v. Payless

Shoesource, Inc., WC Claim No. 1987-015980 (LIRC Sep. 27, 2007)(“However, ‘plausible’ does not mean
probable. Rather, it is often a word used to avoid actually saying something is more likely than not, or
probable.”)
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applicant only injured tooth #10 that required a crown in the work incident. Given
the qualified opinion of Dr. Brookes and the weak opinion of Dr. Kleppe, though, the
commission does not credit them that the applicant injury necessitated crowns on all
seven of the applicant’s teeth. The commission credits Dr. Connor that the medical
evidence shows that the applicant fractured his teeth, and that teeth #s 10, 23, 24,
and 25 were injured to the extent that they required full crowns to restore them to a
proper pre-traumatic state. He provided a thorough record review and gave a strong
opinion. His opinion is also consistent with what Dr. Brookes indicated when she
stated that the crowns on teeth #s 7, 8, and 9 “were likely placed primarily due to
longterm wear.” 40

Accordingly, the commission affirms in part and reverses in part the decision of the
administrative law judge. The respondent is liable for the dental treatment expenses
(crowns) for the applicant’s teeth #s 10, 23, 24, and 25.

cc: Atty. Andrew J. Quartaro

40 Joint Ex. 1.
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