JOVICA IVIC, Applicant
PATRICK CUDAHY INC, Employer
ACE AMERICAN INSURANCE CO, Insurer
The applicant submitted a petition for commission review alleging error in the administrative law judge's Findings and Order issued in this matter on April 25, 2006. The employer and its insurance carrier (respondents) submitted an answer to the petition and briefs were submitted by the parties. At issue are whether the applicant sustained a left shoulder injury arising out of and in the course of his employment with the employer on November 26, 2004, and if so, what are the nature and extent of disability and liability for medical expense. The average weekly wage was stipulated to be $610 per week.
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 reverses his Findings and Order. The commission makes the following:
The applicant, whose birth date is May 21, 1960, is a Serbian immigrant with poor English skills who began his employment as a laborer for the employer in April of 2002. He testified through an interpreter. On Friday, November 26, 2004, he was building a concrete block wall. He lost his balance, and swung his left arm around in an attempt to keep his balance. He did not fall, although at one point he supported himself by leaning his left shoulder on a two-by-four that was part of a temporary wall.
When the applicant swung his left arm he felt a sharp pain in his left shoulder, similar to the pain he had experienced in his right shoulder when he fell at work and injured that shoulder on February 3, 2004. That fall caused a right shoulder rotator cuff tear and rotator cuff repair surgery performed by Dr. Brian McCarty on February 16, 2004. The day of the left shoulder incident, the applicant went to the company nurse. She gave him Ibuprofen and told him to come back and see the physician's assistant, Keith Hacker, who regularly visited the employer's plant on Tuesday and Friday afternoons. The applicant's shoulder pain did not go away, so he went with a co-worker/interpreter to see Hacker on Friday, December 3, 2004. Hacker's clinic note of that date indicates left shoulder pain "occurred while at work on 11/26/04." Hacker recorded that the applicant had swung his left arm around to reach for a block when he felt a "pop" and pain. Hacker questioned whether it was a work injury because the applicant had merely swung his arm and was not lifting anything. He told the applicant to continue taking Ibuprofen and that he would see him the following Tuesday. He restricted the applicant to right-handed work.
The applicant saw Hacker again on Tuesday, December 7, 2004, and indicated his shoulder had improved slightly but was still painful. Hacker wrote that the applicant, who always saw Hacker with an interpreter, had played volleyball and handball for years. However, the applicant only played handball when he was a youth, and never played volleyball. Hacker also recorded the applicant as saying that he was climbing over a wall when he slipped and swung his arm on November 26, 2004. Hacker continued conservative treatment and again questioned whether the problem was work-related.
On December 10, 2004, the applicant saw Hacker with no improvement in the shoulder. Hacker reiterated his suspicion that the problem was not
work-related and advised the applicant to see a physician. The applicant saw his primary physician, Dr. Dragan Bogunovic, who ordered a left shoulder MRI on December 15, 2004. It revealed a rotator cuff tear and the radiologist commented that the torn supraspinatus tendon appeared atrophic, but there was also edema in the joint.
The applicant then saw Dr. McCarty on December 23, 2004, again with an interpreter. Dr. McCarty recorded the injury as occurring when the applicant was lifting a concrete block at work on January 26, 2004, and: "He apparently lost balance with the block at the time and reflexively tried to catch it." Dr. McCarty diagnosed a left rotator cuff tear and noted that the swelling in the shoulder pointed to a recent injury. On January 14, 2005, Dr. McCarty performed rotator cuff repair surgery on the left shoulder. He opined that the tear was attributable to the work incident, as did Dr. Bogunovic.
At respondents' request Dr. Sean Keane reviewed the medical records and submitted a report dated January 27, 2006. He opined that the mechanism of swinging the arm would not cause a rotator cuff tear, and that the tear is simply a manifestation of the applicant's preexisting degenerative condition. He noted that the biceps tendon was seen to have been frayed in the surgery, which he did not believe was consistent with a "single isolated tear in otherwise healthy tissue." Dr. Keane also pointed to the lack of consistency in the medical records describing the work incident.
In consultation with the commission, the administrative law judge indicated that at the hearing he did not form any definitive credibility impressions of the applicant. As noted in his decision, the administrative law judge believed that Dr. Keane based his medical opinion on the same history of the injury as described by the applicant at the hearing. However, Dr. Keane's report merely recounts the descriptions of the incident given to Physician's Assistant Hacker, Dr. McCarty, and to an unidentified source that Dr. Keane described only by reference to the date of December 13, 2004. Dr. Keane did not personally examine the applicant, and therefore did not personally take a history of the incident. Neither did Dr. Keane refer to the description of the incident given by Dr. Bogunovic in the WKC-16-B which that physician completed on April 20, 2005. Dr. Bogunovic's description of the incident is very close to the description given by the applicant in his testimony.(1)
The credible inference is that there were translation problems when the applicant spoke to the medical providers, each time through an interpreter. In the commission's experience it is extremely common to find substantial differences in the medical providers' descriptions of a work incident, and the language barrier in the applicant's case makes such differences particularly understandable. In such cases, the commission looks to all the evidence presented in determining what weight to assign to medical record discrepancies.
In the applicant's case, the incident was promptly reported and he promptly sought medical assistance, initially from the company nurse. The only co-worker to testify at the hearing, Mirko Ukicevic, verified that the applicant came to him subsequent to the injury and asked him to assist in translating when he went to see Physician Assistant Hacker. Ukicevic indicated that he translated "Best as I could." While differences in detail exist in the providers' descriptions of the incident, the credible inference from all the evidence is that the incident did occur as described by the applicant and Dr. Bogunovic.
Dr. Keane opined that the applicant's swinging of his left arm to assist in keeping his balance was not likely to have resulted in sufficient strain on the rotator cuff to have been a causative factor in the rotator cuff tear. Dr. Bogunovic and Dr. McCarty opined to the contrary, and their opinions are acceptable as credible. It is inferred that the quick swinging of the applicant's left arm made in his attempt to retain balance did place significant strain on his left shoulder joint. The employer submitted a clinic note from Dr. Bogunovic dated April 3, 2002, in which the applicant complained of chest pain, and Dr. Bogunovic additionally noted: "positive for numbness in the left lateral foot, joints in the [sic] both shoulders, back pain." Also submitted was a copy of a left shoulder MRI performed at Dr. Goran Rudic's request on December 28, 2002, which revealed mild degenerative changes at the greater tuberosity and an old left clavicle fracture or disc location. A right shoulder MRI was performed on the same date, but no clinic note from Dr. Rudic was submitted. While these documents hint at some preexisting degenerative changes in the applicant's left shoulder, they fall far short of establishing that the applicant had a symptomatic, preexisting left shoulder condition as of November 26, 2004. The applicant credibly testified that he had no difficulty working with his left shoulder prior to the incident of that date.
The commission therefore finds that the applicant sustained a left shoulder rotator cuff tear in the work incident of November 26, 2004, and that pursuant to Dr. McCarty's clinic note of July 28, 2005, the applicant was temporarily totally disabled from December 23, 2004 through July 28, 2005. The employer paid short-term disability to the applicant in the amount of $1,713.28 for a portion of this period, and therefore the insurance carrier shall deduct that amount from the temporary total disability otherwise due. The insurance carrier may be required to reimburse this $1,713.28 to the employer, depending upon the terms of its worker's compensation policy with the employer. The temporary total disability period amounted to 31 weeks and 1 day, which at the applicable rate of $406.67 per week, totals $12,674.55. Subtraction of the $1,713.28 short-term disability payments nets $10,961.27. A 20 percent attorney's fee will be subtracted from this amount.
Dr. McCarty credibly assessed a 7 percent permanent partial disability at the left shoulder, which equates to 35 weeks of permanent partial disability at the applicable rate of $232.00 per week, for an accrued total of $8,120.00. A 20 percent attorney's fee will also be subtracted from this amount.
Discussions at the beginning of the hearing indicated that there was uncertainty concerning the exact amount of medical expenses due, and there had been difficulty obtaining invoices to verify those amounts. The WKC-3 submitted at the hearing was not accompanied by any supporting documentation, and it was agreed that should causation be found the issue of medical expenses would be revisited on an interlocutory basis. Accordingly, the commission's order will be interlocutory with respect to that issue.
NOW, THEREFORE, this
The Findings and Order of the administrative law judge are reversed. Within 30 days from this date, respondents shall pay to the applicant the sum of Fifteen thousand two hundred sixty-five dollars and one cent ($15,265.01); and to applicant's attorney, Robert E. Nailen, fees in the amount of Three thousand eight hundred sixteen dollars and twenty-six cents ($3,816.26).
Jurisdiction is reserved only with respect to the issue of the reasonably required medical expenses attributable to the work injury of November 26, 2004.
Dated and mailed October 30, 2006
ivicjo . wrr : 185 : 8 ND § 8.24
/s/ James T. Flynn, Chairman
/s/ David B. Falstad, Commissioner
/s/ Robert Glaser, Commissioner
cc:
Attorney Robert E. Nailen
Attorney Michael A. Mesirow
Appealed to Circuit Court. Affirmed June 6, 2007.
[ Search Decisions ] - [ WC Legal Resources ] - [ LIRC Home Page ]