JACKAI SZUHAI, Applicant
COUNTY OF RACINE, Employer
COUNTY OF RACINE, Insurer
The applicant submitted a petition for commission review alleging error in the administrative law judge's Findings and Interlocutory Order issued in this matter on February 2, 2005. The self-insured employer, Racine County, submitted an answer to the petition and briefs were submitted by the parties. At issue are whether the applicant sustained bilateral carpal tunnel syndrome injuries arising out of and in the course of her employment with the employer, whether the applicant additionally sustained a compensable psychological injury in the form of depression, and nature and extent of disability and liability for medical expense. In response to the applicant's petition, the employer asserts that her psychological disorder is not causally related to her bilateral carpal tunnel syndrome, but that if the psychological disorder is found to be work-related, it would be premature to make findings regarding permanent disability or loss of earning capacity.
On December 16, 2005, the commission remanded the matter to the department for the taking of additional evidence in the form of an impartial psychiatric opinion. Pursuant to the department's request, Dr. Sherri Hansen submitted a written opinion dated June 27, 2006.
The commission has carefully reviewed the entire record in this matter, and after consultation with the administrative law judge regarding the credibility and demeanor of the witnesses, hereby affirms in part and reverses in part his Findings and Interlocutory Order. The commission makes the following:
The applicant, whose birth date is April 30, 1946, began her employment with the employer in 1974. In 1984 or 1985, she was transferred to the job of park manager for a county park. Her day-to-day activities included substantial lawn mowing and trimming, and other duties involving the use of her hands. The work was seasonal and extended from April through October, but the applicant was salaried on a 12-month basis because she worked so many extra hours during the work season that it made up for the months she did not work. She developed numbness and tingling in her right wrist in the late 1980's, and subsequently also in her left wrist. Her wrists would heal and feel better over the months that she did not work for the employer, but steadily worsened during the months that she worked.
The applicant's last day of work for the employer was the seasonal layoff occurring on October 30, 2001. During that winter her wrists symptoms did not resolve to the extent that they had in the past, and she sought treatment from Dr. Todd Barnhardt in March of 2002. He diagnosed bilateral carpal tunnel syndrome and performed left wrist surgery on April 16, 2002, and right wrist surgery on June 4, 2002. He released her to light duty on September 25, 2002, but the employer did not have light duty available. Due to budget considerations, the employer eliminated the applicant's park manager position effective January 1, 2003, and notified her of this fact by letter dated December 11, 2002.
The applicant did not apply for any positions with the employer after her layoff, although before she was officially discharged she did speak with the human resources director and requested another position if one became available. The applicant knew the layoff was coming and applied for Social Security Disability Income on or about September 15, 2002, and was successful in obtaining it. She was required to apply for SSDI as a prerequisite to continuing to receive long-term disability benefits. She officially retired from the county in June of 2003. Due to the physical limitations associated with her wrists, the applicant was also forced to resign her part-time employment as an emergency medical technician. She had performed this work for 12 years.
The applicant's physical limitations caused by her wrist injuries, as well as the loss of her jobs, affected her psychologically. She became depressed with episodes of crying, loss of concentration, disruptive sleep patterns, and loss of self-esteem. On April 30, 2003, she first sought treatment for her depression from Dr. Herbert Roehrich, a psychiatrist. He referred her to a psychologist for psychotherapy, and also prescribed an anti-depressant. The psychotherapy helped but was discontinued because the psychologist was not recognized as a therapist by Medicare. The applicant continued to see Dr. Roehrich and indicated that she planned to see a different psychotherapist pending the outcome of her worker's compensation claim. Dr. Roehrich completed a WKC-16-B dated December 17, 2003, in which he diagnosed work-related major depression due to the applicant's loss of physical ability and employment. He assessed 25 percent permanent partial disability attributable to this depression, which he indicated "will not likely remit unless she has physical recovery from carpal tunnel deficits." The applicant remains unemployed and has not sought assistance from the Department of Vocational Rehabilitation.
At the employer's request, Dr. K. Kwang Soo, a psychiatrist, examined the applicant and submitted a written evaluation dated June 30, 2004. He also diagnosed major depression and wrote:
"There is no direct causal relation between Ms. Szuhai's occupation exposure and her psychiatric injury. Her psychiatry (sic) injury (depression) is related to her current disability in her hands and loss of jobs. The answer to this question will be obvious when it is determined if her bilateral carpal tunnel syndrome was caused by her occupation exposure."
Dr. Soo also opined that further treatment in the forms of psychotherapy and medication would be required, and that there would likely be "residual depression" unless the applicant adjusted to her physical ability and her vocational outlook improved.
Pursuant to the commission's and the department's request, Dr. Sherri Hansen provided an additional medical opinion in a letter dated June 27, 2006. Dr. Hansen opined that the applicant suffers from a major depressive disorder that is causally linked to the effects of her bilateral carpal tunnel syndrome. Dr. Hansen also opined that the applicant required further treatment to address the symptoms of her depression, and that she is disabled as a result of that depression.
In consultation with the commission, the administrative law judge indicated that his order was intended to find that the applicant had sustained a depressive disorder as a result of her bilateral carpal tunnel syndrome, but that because additional treatment was advised, he inferred that it was premature to address her claims of
permanency and loss of earning capacity. The commission agrees with these inferences.
The employer asserts that the applicant's depression is attributable solely to the fact that she lost her employment with it as of January 1, 2003. However, Dr. Roehrich and Dr. Hansen attribute a substantial part of the cause for the applicant's depression to the physical limitations caused by the bilateral carpal tunnel syndrome. Even Dr. Soo, in his somewhat ambiguously-worded opinion, indicated that the applicant's depression is related to her "current disability in her hands" as well as to her loss of jobs. The commission concludes, as did the administrative law judge, that there is a substantial causal relationship between the physical limitations of the applicant's bilateral carpal tunnel syndrome and her depression, independent of the fact that she lost her jobs.
However, the commission also finds that as of the date of hearing, Dr. Roehrich's assessment of a 25 percent permanent partial disability attributable to the applicant's depression was not credible, and that the issue of whether the applicant has sustained or will sustain any permanency as a result of her psychological injury remained unresolved. Dr. Roehrich, Dr. Soo and Dr. Hansen have all recommended additional treatment for the applicant's depression, and with the proper treatment, it is certainly possible that she could completely recover from her depression.
The administrative law judge found in his order that there was no claim for temporary total disability, but the application for hearing claimed temporary total disability beginning on April 1, 2002, and continuing through the date of hearing (October 27, 2004). Dr. Barnhardt credibly indicated that the applicant's carpal tunnel syndrome disabled her from work as of April 1, 2002, and that she did not reach an end of healing from that bilateral condition until March 26, 2003, at which time Dr. Barnhardt assessed two percent permanent partial disability at each wrist. Dr. Roehrich began treating the applicant for her work-related depression on April 30, 2003, and had not released her as of the date of hearing. Accordingly, the applicant is entitled to temporary total disability from April 1, 2002 through March 26, 2003, and from April 30, 2003 through October 27, 2004. The combined total of these two periods is 119 weeks and two days. The conceded average weekly wage is $707.30 which translates into a temporary total disability rate of $471.53 per week. The total award for temporary total disability is therefore $36,936.52, less a 20 percent attorney's fee.
Because the issue has not been fully addressed by both parties, the commission declines to make prospective findings regarding the applicant's psychological healing status subsequent to October 27, 2004. The commission will leave the order interlocutory with respect to that issue, as well as to the issues of whether or not there is any permanency and loss of earning capacity attributable to the applicant's psychological injury.
Dr. Barnhardt credibly assessed two percent permanent partial disability at each wrist, which pursuant to Wis. Stat. § 102.52(3) and 102.53(4), results in 17.6 weeks of compensation. The applicable rate of permanent partial disability is $212 per week, yielding a total of $3,731.20. The department's records indicate that the employer has already conceded and paid this amount towards permanent partial disability ($2,250.91 to the applicant and $1,480.29 to her attorney). (1) However, given the commission's findings regarding temporary total disability, the only period during which permanent partial disability was accrued and payable prior to the hearing date was the period between March 26, 2003 and April 30, 2003. This was a period of exactly 5 weeks, which equates to $1,060.00 in compensation. Since the self-insured employer has already paid $3,731.20 in compensation, the difference between this payment and the $1,060.00 in PPD actually accrued, a difference of $2,671.20, shall be credited against the TTD award of $36,936.52. This results in a net amount due for TTD of $34,265.32. The unaccrued balance of the PPD award, or $2,671.20, shall begin to accrue as soon as a healing plateau has been reached subsequent to the hearing date of October 27, 2004. As previously noted, the commission declines to make any finding at this time regarding when such healing plateau was or will be reached. When the unaccrued balance of the PPD award is paid, the 20 percent attorney's fee shall be subtracted from it and paid to applicant's attorney.
Reasonably required medical expenses are due as ordered below. Jurisdiction will be reserved with respect to all issues related to the applicant's psychological injury.
NOW, THEREFORE, this
The Findings and Interlocutory Order of the administrative law judge are affirmed in part and reversed in part. Within 30 days from this date, the self-insured employer shall pay to the applicant as compensation for temporary total disability the sum of Twenty-seven thousand four hundred twelve dollars and
twenty-six cents ($27,412.26); to applicant's attorney, Richard A. Fortune, fees in the amount of Six thousand eight hundred fifty-three dollars and six cents ($6,853.06); to All Saints Medical Group the sum of One thousand nine hundred sixty three dollars and eighty one cents ($1,963.81); to SEAC the sum of Seven hundred seventy four dollars and eight cents ($774.08); to All Saints Medical Center the sum of Two thousand two hundred fourteen dollars and twenty two cents ($2,214.22); to Racine Radiologists the sum of Two dollars and seventy nine cents ($2.79); to Wausau Insurance as reimbursement the sum of Twenty seven thousand seventy one dollars and fifty nine cents ($27,071.59); and to the applicant as reimbursement for mileage expense the sum of Five hundred thirteen dollars and twenty eight cents ($513.28).
Jurisdiction is reserved for such further findings and orders as may be warranted.
Dated and mailed September 29, 2006
szuhaja . wrr : 185 : 2 ND § 5.7
/s/ James T. Flynn, Chairman
/s/ David B. Falstad, Commissioner
/s/ Robert Glaser, Commissioner
cc:
Attorney Richard A. Fortune
Attorney Susan M. Love
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