STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION
P O BOX 8126, MADISON, WI 53708-8126 (608/266-9850)

DENA L KAAP, Applicant

COUNTY OF MILWAUKEE, Employer

COUNTY OF MILWAUKEE, Insurer

WORKER'S COMPENSATION DECISION
Claim No. 2005-031282

The applicant submitted a petition for commission review alleging error in the administrative law judge's Findings and Order issued in this matter on September 25, 2006. The self-insured employer, County of Milwaukee, submitted an answer that included a letter brief. At issue are whether the applicant sustained an occupational right carpal tunnel syndrome arising out of and in the course of her employment with the employer, and if so, what are the nature and extent of disability and liability for medical expense.

The commission has carefully reviewed the entire record in this matter and hereby reverses the administrative law judge's Findings and Order. The commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW


The applicant, whose birthdate is September 20, 1972, began her employment with Milwaukee County as a seasonal parks employee in 1991. She became a full-time corrections officer in 1995, and in August of 2002 transferred to a position as an economic support specialist. An economic support specialist determines eligibility for food stamps, child assistance, and other benefits. It primarily involves computer and telephone work, and the applicant uses her right hand to manipulate the computer mouse and to frequently type in numbers on the 10-digit key pad on the right side of the keyboard.

The applicant testified that she first noted symptoms of numbness and tingling in her right hand in January 2005, and the symptoms increased over time. She first treated at the Lakeshore Medical Clinic where her primary physician, Dr. Rita Schulz, practices. On May 23, 2005, Dr. Schulz examined the applicant and took a history of bilateral hand pain and numbness since January 25, 2005. Dr. Schulz noted that a recent EMG had shown mild right carpal tunnel syndrome. Dr. Schulz also wrote in her note that the applicant types all day at work, and referred her to a hand specialist, Dr. David Siverhus.

Dr. Siverhus first saw the applicant on May 25, 2005, and took a history of intermittent numbness and tingling in both hands, right worse than left. He recorded the symptoms as having begun in January of 2005, and having worsened over the next five months. He diagnosed bilateral carpal tunnel syndrome and injected the right wrist, but this did not result in improvement of the applicant's symptoms.

The applicant was referred to Dr. Lewis Chamoy, who performed a right carpal tunnel release on August 16, 2005. This had a good result. Dr. Chamoy completed a WKC-16-B on August 15, 2005, in which he opined that there had been occupational causation attributable to use of the computer mouse. The WKC-16-B was completed the day before the surgery, so Dr. Chamoy checked "undetermined" with regard to permanent disability.

Dr. Schulz completed a WKC-16-B dated August 23, 2005, in which she opined that there had been direct work causation, and referred to her clinic note of May 23, 2005. She indicated there was no permanent disability. Dr. Siverhus completed a WKC-16-B dated July 21, 2005, in which he opined that there had been no work causation.

At the County's request, Dr. Michael Borkowski examined the applicant on October 24, 2005, and submitted a report dated November 8, 2005. Dr. Borkowski opined that the applicant's bilateral carpal tunnel syndrome was not work-related. He cited the applicant's risk factors for this condition: female, markedly overweight (5 foot 5 inches, and 240 pounds), and a smoker. He also opined:

"Carpal tunnel syndrome can occur from work activities when forceful gripping, in combination with repetitive and prolonged grasping activities are performed, as seen in several industrial occupations. Review of the medical literature has not supported work exposures in occupations such as secretarial work, transcription and computer operation as the material causative mechanism for carpal tunnel syndrome, as these work activities do not involve a forceful grasping in combination with repetition."

The administrative law judge accepted the causation opinion given by Dr. Borkowski, and additionally relied upon the fact that Dr. Siverhus had opined that there was no work causation.

Dr. Borkowski correctly noted that the applicant did have personal risk factors for carpal tunnel syndrome. However, the employer took the applicant "as is" when it hired her. Semons Dept. Store v. ILHR Dept., 50 Wis. 2d 518, 528, 184 N.W.2d 871 (1971).

Dr. Chamoy and Dr. Schulz credibly opined that the computer work the applicant performed for the employer was a least a material, contributory causative factor in the onset or progression of her right carpal tunnel syndrome. Dr. Borkowski's assertion that computer work in the absence of forceful grasping has not been shown to have been causative of carpal tunnel syndrome, is not credible. The applicant credibly testified that she would experience numbness and tingling in her right hand while at work, and would shake her hand to relieve those symptoms. The applicant's duties clearly did place a repetitive strain on her wrist. Dr. Siverhus gave no explanation for his opinion that the right carpal tunnel syndrome was not work-related. Dr. Chamoy's and Dr. Schulz's opinions that the applicant's work exposure was causative of her right carpal tunnel syndrome are credible.

The applicant first missed work due to her occupational right carpal tunnel syndrome on August 16, 2005, making that the date of injury. She is entitled to temporary total disability for the period beginning August 16, 2005, and continuing through October 10, 2005, after which Dr. Chamoy returned her to work without restrictions. This was a period of exactly eight weeks, which at the applicable rate of $448.80 per week totals $3,590.40. Dr. Borkowski's assessment of 1 percent permanent partial disability at the right wrist is accepted as credible, resulting in four weeks of compensation at the applicable rate of $242 per week, for a total of $968.

Reimbursement for reasonably required medical expenses is due Humana Insurance Company in the total amount of $5,303.95.

NOW, THEREFORE, this

ORDER

The Findings and Order of the administrative law judge are reversed. Within 30 days from this date, the County of Milwaukee shall pay to the applicant as compensation for temporary total disability and permanent partial disability the total amount of Four thousand five hundred fifty-eight dollars and forty cents ($4,558.40), and to Humana Insurance Company reimbursement in the amount of Five thousand three hundred three dollars and ninety-five cents ($5,303.95).

Dated and mailed February 16, 2007
kaapde . wrr : 185 : 9   ND § 5.18

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

MEMORANDUM OPINION

The commission's reversal of the administrative law judge's decision was based on an analysis of the written medical opinions, and on the uncontested testimony given by the applicant. There was no disagreement between the commission and the administrative law judge regarding the credibility of the applicant's testimony.

cc: Attorney Mark Grady

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