RICHARD G SEGELKEN, Applicant

CITY OF EAU CLAIRE, Employer

CITY OF EAU CLAIRE, Insurer
c/o WISCONSIN MUNICIPAL MUTUAL INS CO

An administrative law judge (ALJ) for the Worker's Compensation Division of the Department of Workforce Development issued a decision in this matter. A timely petition for review was filed by the applicant.

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.

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

Dated and mailed July 27, 2006
segelri . wsd : 175 : 4  ND § 8.23

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

Robert Glaser, Commissioner

The applicant asserts, in his petition for commission review, the administrative law judge erred in dismissing the applicant's claim he suffered a loss of smell as a result of the work incident on August 26, 2003. The applicant claims he provided sufficient medical support from Dr. Miettunen to support his claim for a loss of smell due to the work incident. Dr. Miettunen stated, in a letter dated May 25, 2005, that as far as the etiology of the applicant's loss of smell, clinically it came on shortly after being exposed to various chemical odors and fumes while inspecting a building, and it would seem like this was directly the cause, or at least added to the disability which thus far is not recovered. The applicant contends that under the standard in Pucci v. Rausch 51 Wis. 2d 513, 519 (1971), Dr. Miettunen's verbage is sufficient to establish the necessary medical proof.

In the Pucci case, the court noted the degree of definiteness or positiveness to which medical opinion must conform is best expressed by the term medical probability, which standard requires a conviction of the mind or that degree of positiveness that the physician has in his own opinion, which is based upon his knowledge of medicine and the case facts, that his belief is correct to a reasonable degree of medical probability. The court stated the test was not the use of a word, but the meaning or sense in which the word or phrase was used. The court noted that an expert opinion expressed in terms of possibility or conjecture was insufficient.

In this case, Dr. Miettunen did not submit a WC-16-B or certify that the applicant's loss of sense of smell was due to the work incident to a reasonable degree of medical certainty. The commission agrees with the administrative law judge that Dr. Miettunen does not state an adequate medical opinion as defined by Wisconsin law in terms of the probability standard. The commission agrees with the employer that to be probable is different than to appear to be probable, and evinces a much lesser degree of positiveness. The commission finds Dr. Miettunen's assessment is speculative and does not meet the requisite standard to establish to a reasonable degree of medical certainty the applicant's loss of smell arose out of his work for the employer.

In addition, another of the applicant's treating physicians, Dr. Bartynski, also did not find that the applicant's work incident led to his loss of smell. Dr. Bartynski stated in his treatment notes in 2003, the applicant's smell and taste disorder was probably idiopathic. In addition, even if the commission would find that Dr. Miettunen's assessment was sufficient as a legal standard, the commission credits Dr. Rapport, who reviewed the applicant's medical records on behalf of the employer. Dr. Rapport stated the applicant has a complaint of a decreased sense of smell, but other than a temporal association between the applicant's inspection of the site of a fire and the onset of his hyposmia, there was not enough information in the chart to suggest a scientific basis to prove or disprove the association. The commission finds that the administrative law judge appropriately dismissed the applicant's claim with prejudice.

cc:
Attorney Carol S. Dittmar
Attorney Richard D. Duplessie

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