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

DAVID S HINTZ, Applicant

AARROWCAST INC, Employer

WAUSAU GENERAL INSURANCE CO, Insurer

WORKER'S COMPENSATION DECISION
Claim No. 2005-023658

The applicant submitted a petition for commission review alleging error in the administrative law judge's Findings and Order issued in this matter on May 14, 2007. Aarrowcast, Inc. and Wausau General Insurance Company (respondents) submitted an answer to the petition and briefs were submitted by the parties. At issue are the nature and extent of disability and liability for medical expense attributable to the conceded right leg injury that occurred on March 23, 1998.

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 Order. The commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The applicant, whose birthday is July 26, 1969, was employed as a foundry worker for the employer on March 23, 1998, when an air line broke off a machine and swung in the applicant's direction. The end of the air line, which had a brass fitting on it, struck the applicant in his right leg on the medial side slightly above the ankle. This resulted in a conceded injury to the leg in the form of an ulcerative wound that required medical attention. He received treatment from a physician's assistant, Rita M. Braund, beginning on March 30, 1998. P.A. Braund diagnosed acute cellulitis with mild phlebitis secondary to the right leg contusion. Treatment continued through the month of April, and on May 11, 1998, P.A. Braund noted that the ulcerative wound had closed over with scabbing and some remaining discoloration. P.A. Braund indicated that she would at that point have returned the applicant to work, except for the fact that the employer had discharged him the previous month.

The applicant had to move due to his firing, and could not afford continued medical care for his leg. He testified that the leg continued to be painful and that the ulcer opened up again. Then he obtained another job that provided him with insurance, and he received medical treatment that resulted in the ulcer closing. The treatment included an Unna boot that covered the ulcer with a salve. The applicant lost this new job and again went without medical treatment. Again, the ulcer opened. He and his wife finally found an over-the-counter lotion that once again closed the ulcer, but this was not until 2005.

The applicant had a number of preexisting medical problems, including varicose veins, susceptibility to blood clots, obesity, and hypertension. His treating family physician, Dr. Alfred Neuhoff, opined on September 1, 2005, that he "would have a hard time" associating the applicant's current medical difficulties with the 1998 work incident. Dr. Neuhoff did attribute the applicant's chronic skin changes and discomfort at the site of the wound to the work incident, but nothing else.

The applicant relies on the opinion of Dr. William Stewart, a vascular surgeon who examined the applicant on two occasions: May 11, 2004, and December 7, 2006. Dr. Stewart diagnosed postphlebitic syndrome, ambulatory venous hypertension, and deep vein thrombosis, all attributable to the work incident of March 23, 1998. In a WKC-16-B, Dr. Stewart assessed "40-69 percent" permanent partial disability according to AMA guidelines. In a later WKC-16-B, he assessed 50 percent permanent partial disability without any elaboration.

Respondents' Dr. Richard Steliga examined the applicant on July 21, 2006, and opined that the work incident caused a temporary aggravation of the applicant's preexisting, chronic venous incompetency and insufficiency. He agreed that the work-related wound was delayed in healing due to the applicant's preexisting conditions, but that a healing plateau "had been reached for many years," without any permanency attributable to the work injury.

The applicant sustained a contusion to his right leg in the work incident of March 23, 1998. The contusion caused an ulcerative opening at the wound site that required medical attention until P.A. Braund released the applicant on May 11, 1998. In accordance with P.A. Braund's treatment notes, which are all countersigned by an overseeing physician, the applicant is entitled to temporary total disability for the claimed period of April 10, 1998 through May 11, 1998.

Dr. Steliga's summary of medical treatment refers to right leg Unna boot treatment the applicant received from another physician's assistant, Gerry L. Rhodes, in July and August of 1998. Also referenced is P.A. Rhodes' indication on August 3, 1998, that the right leg ulcer was "almost completely healed." These references from Dr. Steliga's summary are consistent with the applicant's testimony that the ulcer reopened subsequent to P.A. Braund's release on May 11, 1998, and that he received medical treatment that resulted in it closing again. However, the voluminous medical records submitted by the applicant do not contain any clinic notes describing P.A. Rhodes' treatment, and Dr. Steliga did not opine that such treatment was related to the work injury. Therefore, there is no medical opinion identifying such treatment as having been causally related to the work incident of March 23, 1998. Accordingly, no reimbursement for medical expense or other compensation may be awarded for the apparent treatment received in July and August of 1998.

With regard to the applicant's ongoing venous, pulmonary, and other medical problems, Dr. Steliga's opinion that these are causally unrelated to the work incident of March 23, 1998, is entirely credible. These medical problems were preexisting, and the localized leg wound sustained at work on March 23, 1998, has not been credibly shown to have had any effect on them.

Any outstanding medical treatment expenses for the applicant's right leg wound, through the medical release date of May 11, 1998, are compensable. This would include medical mileage expense. The medical expense claims submitted by the applicant are also voluminous, and do not isolate the period between the date of injury and May 11, 1998. This order will be left interlocutory so that the applicant may submit his claim to the respondents for medical expenses attributable to this period ending May 11, 1998. After this submission, respondents should immediately pay such claims, unless there is a legitimate reason for disputing one or more of them. If such dispute arises, opportunity for new hearing shall be given to resolve it.

The applicant is entitled to temporary total disability for the period of April 10, 1998 through May 11, 1998, a period of four weeks and four days, at the applicable rate of $253.33 per week, for a total of $1,182.21. The applicant's attorney is entitled to a 20 percent fee together with $939.99 in costs.

NOW, THEREFORE, this

INTERLOCUTORY ORDER


The Findings and Order of the administrative law judge are affirmed in part and reversed in part. Within 30 days from this date, respondents shall pay to the applicant the sum of Five dollars and seventy-eight cents ($5.78); and to applicant's attorney, Gordon R. Leech, fees in the amount of Two hundred thirty-six dollars and forty-four cents ($236.44), and costs in the amount of Nine hundred thirty-nine dollars and ninety-nine cents ($939.99).

Jurisdiction is reserved solely with respect to outstanding medical expenses claimed for the period between March 23, 1998, and May 11, 1998. Although there is no indication of a claim to be filed under Wis. Stat. § 102.35(3), in order to avoid confusion, it should be noted that this order does not address any possible claim under that statute.
 

Dated and mailed January 28, 2008
hintzda : 185 : 8 ND § 5.46, 8.23

James T. Flynn, Chairman

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

 

NOTE: The commission's partial reversal of the administrative law judge's decision was based on analysis of the written medical records, and did not involve any credibility determination of the applicant's testimony.

 
cc:
Attorney Gordon Leech
Attorney Peter L. Topczewski

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