CURTISTHENE MONTGOMERY, Applicant

COUNTY OF MILWAUKEE, Employer

COUNTY OF MILWAUKEE, Insurer

An administrative law judge (ALJ) for the Worker's Compensation Division of the Department of Workforce Development issued a decision in this matter. A timely petition for review was filed.

The commission has considered the petition and the positions of the parties, and it has reviewed the evidence submitted to the ALJ. Based on its review, the commission agrees with the decision of the ALJ, and it adopts the findings and order in that decision as its own.

The findings and order of the administrative law judge are affirmed.

Dated and mailed October 29, 2007
montgcu . wsd : 175 : 8 ND § 8.18,  § 8.32

/s/ James T. Flynn, Chairman

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

The applicant asserts in her petition for commission review the administrative law judge erred in determining the applicant did not suffer an occupational injury to her cervical spine on October 18, 2004. The applicant indicated in her application for hearing that she suffered an injury to her neck/shoulder while wanding at work in August 2004, and the pain increased and she was forced to miss work starting October 19, 2004. In the summary contained in the synopsis of the hearing testimony prior to the proceedings, the administrative law judge indicated the employer did not concede the applicant suffered a traumatic injury on or about August 16, 2004, or an occupational injury with the last day of work of October 18, 2004. The answer form sent to the employer included an alleged date of injury of October 18, 2004.

The hearing notice sent to the parties on December 15, 2006, included a date of injury of August 16, 2004. The initial emergency room records on October 16, 2004, reflect the applicant reported that the type of work she was doing requires her to lift up her right arm repeatedly, many times a day to check out possible security risks, and she believes the pain is aggravated by doing that type of work. The applicant does not report any particular trauma.

The applicant contends in her petition for commission review, the administrative law judge denied her due process by entering an order denying her occupational claim of October 18, 2004. The applicant contends that the issue was not noticed for hearing. and the applicant did not present evidence on that issue, and that it was improper for the administrative law judge to dismiss the applicant's claim for an occupational type injury.

However, upon review of the evidence, the applicant's initial application for hearing certainly encompasses an occupational type injury, as well as a traumatic injury. The applicant did not relate any specific date of injury on her application for hearing, but simply stated she had the onset of neck pain while wanding at work in August 2004, and the pain increased and she was forced to miss work starting in October 2004. The applicant's treating physician, Dr. O'Connor, references two dates of injury in his WC-16-B, which the applicant submitted at hearing. Several of the treatment histories referenced an occupational type work injury in the medical notes submitted by the applicant. Dr. O'Connor stated in his WC-16-B dated November 12, 2004, the applicant's date of injury was October 18, 2004, when she developed acute pain in the neck after using a security wand on entering personnel throughout the day. Dr. O'Connor also checked the box for a traumatic injury, as well as an occupational injury, and aggravation beyond normal progression.

Dr. O'Connor completed a second WC-16-B dated June 9, 2006, in which he indicated the applicant suffered two dates of injury on August 16, 2004 and October 18, 2004, and described the event as development of neck and right shoulder pain after using a heavy security wand over several weeks, and screening users and personnel at the County Courthouse. Again, Dr. O'Connor checked all three causation boxes on the form.

A transcript of the administrative law judge's introduction of the issues at the hearing states that there were two injury dates at issue, one was August 16, 2004 and the other October 18, 2004, and at issue is whether the injury arose out of or was incidental to the work for the employer. The applicant's attorney agreed that was an accurate and clear statement of the matters conceded and issues in dispute.

Dr. Karr, who examined the applicant on behalf of the employer, stated in his report dated April 27, 2005, that in his opinion the applicant's global work exposure as a security operator had not caused a structural cervical spine injury, and did not aggravate preexisting degenerative cervical spondylosis beyond its expected progression. Dr. Karr opined the applicant suffered from systemic degenerative cervical spondylosis associated with right sided C6 and C7 radiculopathy, due to her preexisting degenerative spinal condition. Dr. Major, another of the applicant's treating physicians, stated in his notes on November 19, 2005, that he was not able to say to a reasonable degree of medical certainty that her degenerative arthritis of the neck would be related to the type of activity that she performed in security for the employer. Therefore, a review of the evidence indicates that the issue of an occupational disease was discussed in the medical reports presented by the applicant, and was sufficiently presented to the administrative law judge at the time of the hearing for him to resolve both the question of any traumatic injury in August 2004, as well as any occupational injury in October 2004.

The administrative law judge made clear at the time of the hearing that there were two dates of injury at issue. The applicant agreed with the administrative law judge's declaration of the issues to be decided. The applicant did not protest or indicate that there was only a traumatic injury at issue at the time of the hearing in this matter. The administrative law judge went on to decide the issue of whether the applicant suffered an injury on August 16, 2004 or October 8, 2004, as he had indicated in his introduction of the issues at the hearing. The commission does not find that the applicant was denied due process.

Based upon a review of the evidence in the record, it appears the administrative law judge appropriately dismissed the applicant's claim for both a traumatic injury, as well as an occupational injury. The administrative law judge appropriately noted that Dr. O'Connor attributed the applicant's occupational problem due to the use of a heavy security wand. The administrative law judge noted that the wand weighed less than one pound. Dr. O'Connor did not have accurate history. In addition, the commission credits Dr. Karr's assessment that the applicant suffered from preexisting systematic degenerative cervical spondylosis and radiculopathy. Dr. Karr credibly opined that the applicant's global work exposure as a security operator had not caused a structural cervical spine injury, and did not aggravate her preexisting degenerative cervical spondylosis beyond its normal progression. In addition, Dr. Major, one of the applicant's treating physicians, had stated in November 2005 that he was not able to say to a reasonable degree of medical certainty that her degenerative arthritis of the neck was related to the type of activity that she performs security for the employer. Based on Dr. Karr's assessment, as well as Dr. Major, and given the fact that Dr. O'Connor did not have an accurate history, and given the applicant's preexisting cervical degenerative disc disease, the commission finds that the administrative law judge appropriately dismissed the applicant's claim for both a traumatic injury in August 2004 and an occupational injury in October 2004.

cc:
Attorney Lynne A. Layber SC
Attorney Mark A. Grady

Appealed to Circuit Court.  Affirmed November 13, 2008.  Appealed to the Court of Appeals.  Affirmed in unpublished decision, January 12, 2010.

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