KEVIN P JEROME, Applicant
DEANGELO JACKSON, Employer
WIS WC UEF, Insurer
The Uninsured Employer's Fund submitted a petition for commission review alleging error in the administrative law judge's Findings and Interlocutory Order issued in this matter on October 18, 2006. The applicant submitted a cross-petition, and briefs were submitted by the parties. Multiple injuries were conceded as having occurred to the applicant's right upper extremities in the work incident of November 24, 2003. Temporary total disability was paid from the date of injury to February 22, 2005, and permanent partial disability benefits were paid in the total amount of $10,154.51. At issue are the nature and extent of disability, including the date of the applicant's healing plateau, attributable to the work injuries of November 24, 2003.
The commission has carefully reviewed the entire record in this matter and hereby affirms in part and reverses in part the administrative law judge's Findings and Interlocutory Order. The commission makes the following:
In his clinic note of February 22, 2005, Dr. Zachary wrote that the applicant was a year and one-half out from surgery and "...he is progressing somewhat." Dr. Zachary then detailed the applicant's continued symptoms and ranges of flexion and extension at the right wrist. He wrote that the radius and ulna had "healed," but that the injury damaged some of the flexor and extensor muscles, and: "Thus, we will most likely continue to monitor his progress." Dr. Zachary indicated there was a 3.2 percent permanent partial disability based on loss of extension and flexion. He finished his note by indicating he would see the applicant again in about four months for a recheck, barring further problems.
On June 21, 2005, Dr. Zachary noted the applicant's ulnar wrist pain and wrist strength had improved. He assessed 4.6 percent permanent partial disability for loss of motion in flexion and extension, and 5.3 percent permanent partial disability for radial and ulnar deviation. The total assessment was therefore 9.9 percent.
At the request of the Uninsured Employer's Fund (UEF), Dr. John Xenos examined the applicant on April 8, 2005. In his report dated May 18, 2005, Dr. Xenos opined that the applicant had reached a healing plateau by the date of his exam on April 8, 2005. Dr. Xenos assessed 2 percent permanent partial disability at the right elbow for loss of pronation, and 14 percent at the right wrist for loss of motion. He also assessed separate percentages of loss at the applicant's right middle finger (45 percent), index finger (50 percent), and thumb (6 percent). These were assessed for loss of motion and sensation as detailed in his report. Dr. Xenos assessed an additional 5 percent permanent partial disability at the right hand (wrist) for loss of strength. In his report, Dr. Xenos gives detailed summations of the applicant's various losses of range of motion and sensation in his elbow, wrist, and fingers/thumb.
The administrative law judge found that the applicant had reached a healing plateau on February 2, 2005, pursuant to Dr. Zachary's clinic note of that date. She accepted Dr. Xenos's assessments of permanent partial disability. Both the applicant and the UEF have petitioned. The applicant argues that he did not reach a healing plateau until Dr. Zachary's exam date of June 21, 2005. UEF argues that Dr. Zachary's 9.9 percent permanent partial disability assessment should be accepted, and in this context, argues that no permanent partial disability can be assessed to the applicant's fingers or thumb, allegedly because the injury was only to his wrist.
UEF's argument that the injury was only at the wrist joint is flawed in two respects. First, the evidence of record leads to the inference that the applicant's elbow and fingers/thumb were actually injured by falling bricks and a 2 x 6, even though the worst injuries were the fractures of his radius and ulna. In short, this was not only an injury to the applicant's wrist joint. (1)
Second, UEF attempts to analogize the applicant's circumstances to those of the worker in Hagen v. LIRC, 210 Wis. 2d 12, 563 N.W.2d 454 (1997). Hagen injured her right shoulder and arm. In determining her permanent disability, the courts interpreted the phrase found in Wis. Stat. § 102.52(1): "The loss of an arm at the shoulder." The court of appeals interpreted the phrase to refer only to injuries distal to the shoulder, and held that shoulder joint disability was not intended to be part of the schedule found in Wis. Stat. § 102.52. The supreme court reversed the court of appeals and accepted the commission's and department's interpretation of the statute, which allows physicians to assess shoulder and arm disability as one percentage, measured by the physician as a percentage of loss of use at the shoulder. UEF argues that is what Dr. Zachary did for the applicant in the present case, measuring all of the applicant's disability from the point of the right wrist. Dr. Zachary did assess disability in terms of the applicant's flexion and extension, and radial and ulnar deviation, all as measured at the right wrist. However, his disability assessment does not take into account the loss of right elbow pronation Dr. Xenos credibly attributed to the work incident, nor does it take into account the loss of thumb and finger motion/sensation Dr. Xenos also credibly attributed to the work incident. Accordingly, unlike the shoulder disability assessment made by the physician in Hagen, Dr. Zachary did not account for all of the applicant's disability with his assessment of 9.9 percent permanent partial disability at the right wrist.
UEF also attempted to analogize the applicant's circumstances to a neck or low back injury, the effects of which may be experienced in the arms or legs respectively, due to affected nerve roots at the point of the cervical or lumbar injury. As previously noted, Dr. Xenos's report identifies separate injuries to the applicant's wrist, elbow, and fingers/thumb. However, even were the applicant's fingers/thumb or elbow disabilities attributable only to the effects of nerve/muscle damage in the area of the radius and ulna, Dr. Xenos's method of permanency assessment would be an acceptable alternative to measuring the entire disability at the level of the wrist. (2) In fact, given the particular nature and location of the applicant's disabilities, the commission infers that it would be the most accurate method of making those assessments.
As noted by Dr. Xenos, the evaluation of the applicant's permanent partial disabilities attributable to the work incident present "complex" issues, given the nature and location of the injuries sustained. It is unlikely that a wrist, elbow, or finger/thumb assessment alone would adequately address the disabilities sustained in the multiple injuries that occurred in the work incident. Dr. Xenos took the credible approach of separately addressing each of the scheduled disabilities sustained at the wrist, elbow, and fingers/thumb.
Dr. Zachary did not fix a final healing plateau until June 21, 2005, when he made his final permanent partial disability assessments. His assessments at that time were larger than the ones he had made on February 22, 2005. On February 22, 2005, Dr. Zachary was continuing to monitor the applicant's progress, and on June 21, 2005, he noted improvement had occurred since the prior visit. However, Dr. Xenos did find a permanent healing plateau on April 8, 2005, and his opinion is credible. Dr. Zachary's opinion regarding healing was vague. He never actually explained when it was that he believed a healing plateau had been reached.
Accordingly, the applicant was temporarily totally disabled from November 24, 2003 until April 8, 2005, a period of 71 weeks and 3 days at the applicable rate of $213.33 per week, for a total of $15,253.10. UEF previously paid $13,866.45 in temporary total disability, leaving a balance due of $1,386.65. A 20 percent attorney's fee shall be subtracted from the balance.
The permanent partial disability awards include 19 percent at the right wrist, 2 percent at the right elbow, 50 percent at the right index finger, 45 percent at the right middle finger, and 6 percent at the right thumb. The permanent partial disability awards therefore amount to 151.37 weeks at the applicable rate of $213.33 per week, for a total of $32,291.76. UEF previously paid $10,154.51, leaving a balance of $22,137.25. The applicant's attorney is entitled to a 20 percent fee plus $43.45 in costs, less an interest credit of $78.24.
Jurisdiction will be reserved because the applicant may require additional medical treatment and/or sustain additional disability, and also may seek vocational rehabilitation.
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, UEF shall pay to the applicant the sum of Nine thousand eight hundred thirty-seven dollars and seventy-six cents ($9,837.76); and to applicant's attorney, Charles Soule, fees in the amount of Four thousand six hundred twenty-six dollars and sixty-four cents ($4,626.64), and costs in the amount of Forty-three dollars and forty-five cents ($43.45).
Beginning April 2, 2007, UEF shall additionally pay to the applicant the monthly sum of Nine hundred twenty-four dollars and forty-four cents ($924.44), until the currently-unaccrued permanent partial disability shall be paid in the total amount of Eight thousand nine hundred thirty-seven dollars and eighty-one cents ($8,937.81).
Jurisdiction is reserved for such further findings and orders as may be warranted.
Dated and mailed February 22, 2007
jeromke . wrr : 185 : 9 ND § 5.18
/s/ James T. Flynn, Chairman
/s/ David B. Falstad, Commissioner
/s/ Robert Glaser, Commissioner
The commission's partial reversal with regard to the issue of the applicant's healing plateau was based solely on analysis of the written medical records. The commission and the administrative law judge had no disagreement regarding the credibility of the applicant's testimony.
cc:
Attorney Charles M. Soule
Attorney Michael C. Frohman
Appealed to Circuit Court. Affirmed November 9, 2007.
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