RUFUS D WHITE, Applicant

BRAAM COMMUNICATIONS, Employer

MILWAUKEE MUTUAL INSURANCE COMPANY, Insurer

The employer submitted a petition for commission review alleging error in the administrative law judge's findings and order dated July 25, 1997. At issue is the nature and extent of the applicant's disability as a result of his fall at work on January 9, 1993.

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 witnesses, hereby sets aside the administrative law judge's order and substitutes the following therefor:

The applicant worked for the employer as a cable installer when on January 9, 1993 he was working on a ladder on the second floor of a building when the ladder slipped and he fell and landed on concrete and broke his wrist. The applicant was taken to the emergency room where he was treated by Dr. Dzwierzynski. The applicant's wrist was placed in a cast and he subsequently underwent left wrist surgery with Dr. Dzwierzynski on August 13, 1993, and was released to restricted work later in 1993. The applicant testified that following his surgery he still had swelling and a tingling sensation in his wrist and sometimes it freezes. The applicant also testified that sometimes his wrist locks and that his symptoms are not confined to his wrist but that they extend down his wrist to his fingertips.

Dr. Dzwierzynski testified, when called by the employer, that he could not recall that the applicant had injured his left thumb or fingers in the fall at work in January 1994. Dr. Dzwierzynski testified that he could recall that the applicant had an injury to his left wrist and a fracture of the sacpho-lunate. Dr. Dzwierzynski testified that he performed a partial wrist fusion for the applicant but he could not recall any specific surgery or treatment to the applicant's thumb or fingers. Dr. Dzwierzynski's WC-16-B dated June 8, 1994 indicates that the applicant suffered permanent disability due to decreased range of motion in the left hand, decreased grip and pinch strength, cold intolerance and pain and discomfort. Dr. Dzwierzynski also completed an attached WC-16 form which indicated that the applicant suffered a left wrist sacpho-lunate instability and that his permanent disability was related to decreased range of motion in the left hand as recorded on the attached sheet. Dr. Dzwierzynski noted that the applicant had difficulty lifting and holding heavier objects, gripping to turn a door knob, opening a car door or holding a skillet and that he had difficulty at work using a screwdriver or holding a drill. Dr. Dzwierzynski also included a separate page which indicated various losses of range of motion and loss of extension and flexion for the fingers on the applicant's left hand including his thumb as well as his wrist.

Dr. Dzwierzynski did not give an estimate of the applicant's permanent disability at the left wrist or to his fingers as a result of the work injury. Rather the department assessed the applicant with 16.5 percent permanent partial disability at the left wrist as well as 11.75 permanent partial disability at the left thumb and 27.5 percent permanent partial in the fingers based on the percentages in Dr. Dzwierzynski's worksheet.

The applicant was also examined by Dr. Haskell on behalf of the employer. Dr. Haskell noted that based on his history and examination that the applicant's initial left wrist injury consisted of a simple undisplaced fracture of the distal radius without an associated disruption of the distal sacpho-lunate ligament and without any subluxation of the scaphoid. Dr. Haskell opined that the applicant sustained significant disability following his surgical intervention with partial ankylosis of the left wrist, and he assessed ten percent permanent partial disability secondary to post-surgical partial ankylosis of the left wrist.

The employer contends in its petition for commission review that as a result of the fall at work the applicant sustained a left wrist injury which effects caused symptoms that extend from the left wrist to the tip of the fingers and that in Wisconsin, the schedule for wrist injury claims provides permanent partial disability benefits of the hand as opposed to amputation at the wrist, but that there is no legal support to award benefits other than those scheduled under Wis. Stat. § 102.52 (3). The commission agrees.

In this case there is no evidence that the applicant sustained multiple injuries or any injury to his fingers as a result of the work injury. There were no reports of any breakage to the applicant's fingers as a result of his work injury. Although Dr. Dzwierzynski found that the applicant suffered a loss of flexion and extension in his thumb and fingers on his left hand he did not opine that these should be rated separately in addition to any disability at the left wrist. The employer appropriately points out that in a case of bilateral carpal tunnel syndrome although there may be disability in the fingers, there is no separate calculation made, rather all of the disability, including the fingers, is assessed and there is one overall assessment of permanent disability at the left wrist.

The commission consulted with the administrative law judge concerning his assessment of the applicant's demeanor and testimony of the nature and onset of his left wrist problems. The administrative law judge indicated that he found the applicant to be straightforward and credible in his testimony concerning the nature of his left wrist problems and his ongoing pain and restrictions. The commission does not disagree with the administrative law judge's credibility assessment of the applicant's demeanor and testimony. However, the applicant did not testify that he suffered any finger injury as a result of his fall at work. The applicant testified that he had a broken wrist as a result of his fall at work. The fact that the applicant felt symptoms in his fingers does not establish that he suffered a separate finger injury. Dr. Haskell opined that the applicant sustained significant disability following the surgical intervention with partial ankylosis of the left wrist and he assessed ten percent permanent partial disability secondary to post-surgical partial ankylosis of the left wrist. The commission credits Dr. Haskell's assessment. Based on Dr. Haskell's assessment the applicant was entitled to 40 weeks of compensation at the rate of $ 152 a week or $ 6080 which has been paid. Based on Dr. Haskell's report and the lack of evidence to support a finding that the applicant suffered any injury to his fingers as a result of the fall at work in January 1993, the evidence was sufficient to raise a legitimate doubt that the applicant was entitled to any further benefits.

NOW, THEREFORE, this

The findings and order of the administrative law judge are set aside in accordance with the above findings. The applicant is entitled to $ 6080 for permanent partial disability to his left wrist as a result of his work injury in January 1993, which has been paid. No further benefits are due.

Dated and mailed February 10, 1998
whiteru . wrr : 175 : 3   ND § 5.18

David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

cc: Attorney Jessica Philleo

[ Search Decisions ] - [ WC Legal Resources ] - [ LIRC Home Page ]

uploaded 2007/10/22