GEROME DURHAM, Applicant
BRADLEY CORP, Employer
FEDERAL INSURANCE CO, Insurer
Federal Insurance Company and the applicant both submitted petitions for commission review alleging error in the administrative law judge's Findings and Order issued in this matter on October 9, 2006. American and Foreign Insurance Company conceded a traumatic left shoulder injury occurring on or about February 1, 2001, for which it paid certain temporary disability. American Insurance also conceded a traumatic low back injury occurring on August 26, 2002, for which it paid certain temporary disability and three percent permanent partial disability of the whole body.
The applicant's current claims are for occupational back, bilateral shoulder, and left wrist injuries. Various dates of injury have been claimed, including October 23, 2003, and January 5, 2004, both dates on which Federal Insurance was on the risk. Federal Insurance has now conceded liability for the bilateral shoulder and left wrist occupational injuries. However, in its petition it disputes liability for the applicant's claimed occupational back injury, and asserts that the date of injury for that claim should be October 2, 2002, when American Insurance was on the risk.
The nature and extent of disability and liability for medical expense for all the occupational injuries are also at issue. The applicant's petition alleges that the administrative law judge erred with respect to the issue of loss of earning capacity.
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 Order. The commission makes the following:
The applicant, whose birth date is November 1, 1943, worked for 37 years primarily as a polisher/grinder for he respondent employer. For approximately the first 30 years of his employment, he was responsible for grinding and polishing sinks. He used a hand truck to transport sinks weighing 25 to 66 pounds from an adjacent area to his work area. He used vibrating tools, including an approximately 19-pound grinder, to smooth and finish the cement and stone sink bowls. He applied pressure to the tools to work the surface of the sink bowl. Upon completion, he lifted the bowl from the work station and placed it in a box. He completed 18 to 20 bowls per day. In the mid 1990's, he moved to the stainless steel sink department. He continued to lift sink bowls to and from his work station, and continued to use vibrating tools weighing as much as 19 pounds, with which he applied pressure to the sink bowl surfaces. Although the applicant treated for bilateral shoulder and back pain on and off beginning July 1, 1999, and received physical restrictions for his various ailments, he continued to work full time as a polisher in the stainless steel division. On August 26, 2002, the applicant injured his low back and left shoulder in a lifting incident at work. American Insurance paid him compensation for these injuries and he returned to work. On October 23, 2003, he experienced acute back and left shoulder pain while lifting a sink at work. These injuries caused him to miss work, but he returned to sedentary duties in the employer's plant, and continued working in this capacity until January 5, 2004. On January 7, 2004, Dr. Kevin Weidman performed an arthroscopic repair of the applicant's left shoulder rotator cuff, and on April 14, 2004, Dr. Weidman performed a left carpal tunnel release.
Occupational Back, Claim No: 2002-043625
The applicant has a long and complicated history of back trouble relative to his employment, but the dispute currently before the commission revolves around whether the applicant's back troubles ripened into an occupational back disease on October 2, 2002, the date the applicant first missed work as a result of the incident of August 26, 2002; or whether this ripening occurred on October 23, 2003, when the applicant again missed work.
In Kohler Co. v. ILHR 42 Wis. 2d 396, 402, 167 N.W.2d 431 (1969), the "ripening" question is addressed as follows:
Five doctors testified in this case, three for the company, two for the applicant. There is a disagreement between them. It is apparent that the department elected to accept the testimony of Dr. Evers, the treating physician, both as to the time of ripening of permanent partial disability and as to the degree of such disability. As the trier of fact it had the right so to do. Its finding is to be upheld if there is credible evidence to support the finding.
The issue of when a developing occupational condition ripens into a compensable occupational disease is one of medical and practical fact. It includes the question of when the advancing occupational condition finally results in a physical incapacity to work. In the applicant's case, he missed two weeks of work as a result of the conceded low back strain of August 26, 2002, and he went back to work with a 40-lb. lifting restriction. The medical records reveal that subsequently his back symptoms waxed and waned with significant periods when he was pain free. He was lifting a 46-lb. sink when he reinjured his back on October 23, 2003. This date is now conceded as the occupational injury date for his shoulders, because the shoulder problems also flared up at this time. After October 23, 2003, the applicant was unable to return to his regular work duties. He was moved to the maintenance department where he performed light duty tasks until he stopped working on January 5, 2004. He retired effective January 9, 2005.
Dr. Masci credibly opined that the applicant did sustain an occupational back disease attributable to his employment with the employer. Dr. Masci listed both the August 2002 and the October 2003 traumatic incidents as having contributed to the disease process, and it is evident that they were. Federal Insurance argues that the applicant's back condition had ripened into an occupational disease by the time he missed work on October 2, 2002, due to the work incident of August 26, 2002. However, Dr. Maci's clinic notes and his WKC-16-B lead to the inference that he considered the applicant's occupational back disease to have been a process that included the incident of October 23, 2003. This inference is supported not only by Dr. Maci's medical opinion, but by the significant change in the applicant's functional back disability after the incident of October 23, 2003. The occupational back disease ripened on that date and caused a physical incapacity to work.
Dr. Masci assessed 10 percent permanent partial disability to the applicant's conceded back injury. In October 2004, Dr. Masci indicated that he believed the applicant was unable to return to work. On February 6, 2006, Dr. Masci completed a medical assessment form that listed severe functional restrictions including sitting for no more than 2 hours in an 8-hour work day, standing/walking for no more than 3 hours in an 8-hour work day, the necessity for frequent breaks, occasional lifting of 10 pounds, and required absences from work for more than 4 days each month. The applicant elected to retire on January 5, 2005, but that decision was based in large part on Dr. Masci's opinion that he could not return to employment with the employer.
On March 1, 2005, Dr. Charles Klein examined the applicant at the employer's request, and opined that he suffered from degenerative disc disease causing an L5-S1 disc protrusion. Dr. Klein further opined that the traumatic work injuries that the applicant had sustained with the employer had only temporarily aggravated his underlying degenerative condition, but that the work place exposure since his employment in 1966 had been at least a material contributory causative factor in the progression of his degenerative low back disease. He assessed 5 percent permanent partial disability to the applicant's low back condition, and gave permanent physical restrictions for the low back of occasional lifting/carrying of 35 pounds or less, and only occasional bending/twisting.
The commission considered all the evidence, including a viewing of the surveillance videotapes submitted into evidence. In consultation with the commission, the administrative law judge indicated that he did not find the video tapes to be particularly helpful. This was also the commission's conclusion. Those tapes do show that the applicant was able to stand for extended periods while performing his night club act, but they do not show any strenuous activity. The administrative law judge did not recall any significant credibility or demeanor impressions of the applicant stemming from the administrative hearing. Regarding the issue of loss of earning capacity, he found the applicant's decision to retire to be controlling. The administrative law judge concluded that the employer would have accommodated the applicant's restrictions and allowed him to return to work.
It is clear from the employer's director of human resources, Madi Catalano, that prior to the applicant's retirement there was little or no direct discussion between him and the employer concerning his ability to return to work. Ms. Catalano agreed that the applicant told her he was considering retirement based on Dr. Masci's and Dr. Weidman's opinions that he could not return to physical labor. On July 23, 2004, the employer's human resources administrator, Kathy Swanson, wrote a letter to the applicant relating the details of his long-term disability payments. The letter also instructed the applicant that on January 8, 2005, his employment with the employer would be officially terminated. However, after the applicant left work on January 5, 2004, he did not present work restrictions to the employer until well after the date of his retirement. The employer has a good record of accommodating employees with physical restrictions. The applicant did not actively seek reemployment with the employer, and even though he indicated that he had planned to wait until age 65 to retire, he has not sought other employment since retiring from the employer.
The commission finds credible Dr. Masci's restrictions as set forth in his assessment of February 6, 2006. The applicant's light-duty work history subsequent to October 23, 2003, credibly demonstrates that he was unable to perform significant lifting. Dr. Klein's opinion that the applicant could lift up to 35 pounds is not credible. In his assessment on February 6, 2006, Dr. Masci credibly indicated that the applicant could only tolerate two hours of sitting, and three-to- four hours of standing/walking in an eight-hour work day. This is consistent with Dr. Masci's observations as described in his clinic notes, and these restrictions substantially limit the applicant's employment opportunities. It is inferred that had there been adequate communication between the employer and the applicant prior to his retirement, concerning Dr. Masci's restrictions, the employer would have found employment to accommodate the applicant's physical restrictions. However, it is also inferred that in accordance with Dr. Masci's restrictions the applicant's work day would have been reduced by two-to-three hours. Finally, it is inferred that the lack of communication between the applicant and the employer concerning a return to employment was to a great extent the fault of both parties. The applicant accepted Dr. Masci's advice not to return to work without discussing his restrictions with the employer, and the employer accepted the applicant's application to retire without discussing the possibility of continued employment within his physical restrictions. Accordingly, the commission does not find the fact of the applicant's retirement to be controlling with respect to the issue of loss of earning capacity. In addition, the courts have recognized that a decision to retire does not necessarily mean that the retiree has withdrawn from the labor market for the rest of his/her life. (1)
The commission accepts the loss of earning capacity assessment of vocational expert Michael Campbell. Campbell opined that under the assumption that the employer could have accommodated Dr. Masci's February 2006 restrictions, thus reducing the applicant's work day by two-to-three hours, the applicant sustained a 25 to 38 percent loss of earning capacity. Given the applicant's lack of effort, as of the date of hearing, to seek alternative employment after his retirement, the commission accepts the lower end of that assessment (25 percent).
Based on Dr. Masci's opinion, Federal Insurance is also liable for the reasonably required medical expense, including mileage expense, claimed by the applicant for his low back treatment.
Left Shoulder, Claim No: 2004-035040
The commission finds that the applicant sustained an occupational left shoulder injury on or about October 23, 2003, while performing service arising out of and in the course of his employment. While the applicant was off of work to treat for the low back injury, an MRI of his left shoulder showed degenerative changes and a possible rotator cuff tear. Dr. Klein and Dr. Masci credibly opined that the 37 years of work exposure was at least a material contributory causative factor in the onset or progression of the shoulder injury. October 23, 2003, was the last day that the applicant engaged in his regular job. He did temporarily return to work with the employer in a sedentary job. The commission accepts the permanent disability rating of 15 percent loss of use of the left arm at the shoulder. The applicant was temporarily and totally disabled as the result of his shoulder injury from January 7, 2004 to November 1, 2004. Federal Insurance is liable for this compensation. Dr. Klein's recommendation that the applicant undergo a surgical procedure to cure or relieve the effects of the left shoulder injury is also credible. Federal Insurance is liable for medical expenses in the event that the applicant elects to undergo this surgery. It is also liable for the current medical and mileage expense claims.
Right Shoulder, Claim No: 2004-035041
The commission finds that the applicant suffered an occupational right shoulder injury on or about October 23, 2003, while performing service arising out of and in the course of his employment with the employer. This finding is based on the opinions of Dr. Masci and Dr. Klein, and Federal Insurance conceded this injury. The right shoulder injury was discovered while the applicant was treating for his back and left shoulder. An MRI of the right shoulder revealed degenerative changes brought on by 37 years of work exposure. Dr. Klein did not attribute any temporary disability to this condition. Dr. Klein did credibly assess 5 percent permanent partial disability to the right shoulder injury, due to pain and lost range of motion. Federal Insurance is liable for all the claimed shoulder charges.
To summarize the compensation payable to this point, the applicant was temporarily and totally disabled due to the left shoulder injury and surgery from January 7, 2004 to November 1, 2004, a period of 42 weeks and 4 days at the applicable weekly rate of $600.96, for a total due of $25,640.96. As a result of the applicant's occupational back injury he sustained 10 percent permanent functional disability to the body as a whole. This permanency rating is subsumed in the award of 25 percent loss of earning capacity for that injury. The applicant also sustained 15 percent permanent partial disability for loss of use of the left arm at the shoulder, and 5 percent permanent partial disability for loss of use of the right arm at the shoulder. The multiple injury factor applies, and the applicant is due a total of 345 weeks of permanent partial disability at the applicable weekly rate of $222.00, for a monetary total of $76,590.00. The sum of $37,388.37 is accrued to September 1, 2007; however, $12,408.52 shall be subtracted from the accrued payments to the applicant for reimbursement of the short-term disability payments made by the employer ($8,748.94), and long-term disability payments made by Unum ($3,659.58). Beginning October 1, 2007, the applicant shall receive $962.00 per month until the balance of $42,387.20 in unaccrued permanent partial disability is paid.
Left Wrist, Claim No: 2005-023594
The commission finds that the applicant sustained an occupational left wrist injury with the date of injury being January 5, 2004. This finding is in accordance with the credible medical opinions of Dr. Masci and Dr. Klein. It is credible that 37 years of using a vibrating tool in his employment with the employer was at least a material contributory causative factor in the injury. The applicant continued to have pain, numbness, weakness, and tingling in his left hand following the carpal tunnel release. Accordingly, the commission adopts the opinion of Dr. Masci on the issue of permanent disability as it concerns the left wrist. The applicant sustained 5 percent permanent partial disability for loss of use of the left arm at the hand, which translates into 20 weeks of permanent partial disability at the applicable weekly rate of $232.00, for a total of $4,640.00. This amount is all accrued and payable. The period of temporary disability related to this injury was subsumed in the left shoulder claim. Federal Insurance is liable for the claimed medical and mileage charges.
The attorney's fee based on the injuries of October 23, 2003, is set at $18,907.30, which is 20 percent of the compensation for the temporary disability and permanent partial disability. The fee reflects an interest credit deduction of $1,538.89. The attorney's fee based on the left wrist injury amounts to $928.00, which is 20 percent of the permanent partial disability award. The attorney fees, together with costs in the amount of $2,009.20, shall be deducted from the applicant's accrued compensation.
The applicant may require additional medical treatment for one or more of his injuries and therefore jurisdiction will be reserved.
Now, therefore, this
The Findings and Order of the administrative law judge are affirmed in part and reversed in part. Within 30 days from this date, Federal Insurance Company shall pay to the applicant accrued compensation in the total amount of Twenty-eight thousand six hundred ninety-one dollars and eighty-five cents ($28,691.85); to Attorney Robert T. Ward, fees in the amount of Nineteen thousand eight hundred thirty-five dollars and thirty cents ($19,835.30), and costs in the amount of Two thousand nine dollars and twenty cents ($2,009.20); to Bradley Corporation in reimbursement in the amount of Eight thousand seven hundred forty eight dollars and ninety-four cents ($8,748.94); to Unum reimbursement in the amount of Three thousand six hundred fifty-nine dollars and fifty-eight cents ($3,659.58); to Milwaukee Occupational Medicine the sum of Fourteen thousand seven hundred nine dollars and ninety-six cents ($14,709.96); to Dr. Kevin Weidman the sum of Fifty-eight dollars ($58); to Saint Mary's Hospital the sum of Two hundred dollars and sixty-six cents ($200.66); to Wausau Insurance as reimbursement the sum of Forty-three thousand six hundred fifty dollars and nineteen cents ($43,650.19); and to the applicant as reimbursement for out-of-pocket medical and mileage expense the sum of One thousand one hundred fifty-six dollars and sixty-nine cents ($1,156.69).
Beginning on October 1, 2007, and continuing monthly thereafter, Federal Insurance Company shall pay to the applicant the sum of Nine hundred sixty-two dollars until the currently-unaccrued compensation has been paid in the total amount of Forty-two thousand three hundred eighty-seven dollars and twenty cents ($42,387.20).
The application against American & Foreign Company is dismissed.
Jurisdiction is reserved for such further findings and orders as may be warranted.
/s/ James T. Flynn, Chairman
/s/ Robert Glaser, Commissioner
/s/ Ann L. Crump, Commissioner
cc:
Attorney Thomas M. Rohe
Attorney Robert T. Ward
Attorney John T. Thul
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