Wis.LIRC WC Decision: Lazenby, Dale - February 19, 2008 - ND � 3.3 Evidence established injury from fall at work caused the applicant's disability rather than RSD from a prior fracture suffered in a fall at home.

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

DALE LAZENBY, Applicant

STEWARD ENTERPRISES INC/

TRAVELERS PROPERTY CAS CO OF AMERICA, Insurer

WORKER'S COMPENSATION DECISION
Claim No. 2006-008010

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.

ORDER

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

Dated and mailed February 19, 2008
lazenda . wsd : 175 : 9 ND � 3.3

/s/ James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

MEMORANDUM OPINION

The employer contends in its petition for commission review the administrative law judge erred in determining the applicant sustained a refracture of the fifth metacarpal on his right hand as a result of a slip and fall at work on February 22, 2006, leading to the need for treatment and temporary total disability through April 4, 2007, as well as medical expense. The employer contends the administrative law judge should have credited the opinion of Dr. Wilkins, a hand surgeon who evaluated the applicant on behalf of the employer. Dr. Wilkins stated in his report dated May 23, 2006 that the applicant's initial fracture due to a fall at home on January 8, 2006 had healed and his ongoing problems are consistent with reflex sympathetic dystrophy. Dr. Wilkins opined the applicant's ongoing hand problem of reflex sympathetic dystrophy was a result of the fracture that happened at home on January 8, 2006, and was not a work-related injury. Dr. Wilkins stated that the applicant had a completely normal right hand prior to falling from a stepladder at home on January 8, 2006 and has had ongoing right hand problems since that time.

The employer also contends that the applicant's treating hand specialist, Dr. Stark, did not have an accurate history. The employer states that in his report of June 12, 2006 Dr. Stark noted that the applicant was engaging in strenuous work activity from January 30, 2006 to February 23, 2006 and had no history of a trauma, and therefore Dr. Stark relied upon a history that was not accurate.

However, the applicant testified that he informed Dr. Stark of his fall at work on February 22, 2006 while working as a groundskeeper. The commission consulted with the administrative law judge concerning her assessment of the applicant's demeanor and testimony that he informed Dr. Stark in February 2006 of the nature and onset of his right hand symptoms following the work incident on February 22, 2006. The administrative law judge indicated that she found the applicant's testimony of the nature and onset of his symptoms on February 22, 2006 to be straightforward and credible. She also found the applicant's testimony persuasive that he informed Dr. Stark of the work incident.

Although Dr. Stark referred to work activities between January 30, 2006 and February 24, 2006 in his letter dated June 12, 2006, Dr. Stark's treatment notes on February 27, 2006 state the applicant was seen for a swollen hand which was stiff and it sounded like the applicant may have reinjured himself a couple of weeks earlier when he slipped and extended his hand. Dr. Stark's treatment notes on March 1, 2006 state the applicant was seen for an incompletely healed fracture and according to the applicant's history it was quite clear that he slipped at work on February 22, 2006, and jammed his hand against a wall at which time the hand began to swell and was painful again.

The applicant testified that he injured his right hand at work on February 22, 2006 when he slipped and fell and jammed his right hand on the dirt while attempting to guide a grave marker with his left hand in the bucket of a backhoe. Based upon a review of all of the evidence in the record the commission finds that the applicant gave Dr. Stark an accurate history that he suffered a traumatic injury at work on February 22, 2006 when he slipped and fell, landing on his right hand. The commission has found nothing to warrant overturning the administrative law judge's credibility determination.

Mr. Wegner, a co-worker, testified that he was working with the applicant on February 22, 2006 when the applicant slipped and fell to his right and put his right hand into the dirt. Mr. Wegner testified that the applicant fell down and got up and held his hand, and he indicated that the applicant appeared to be in pain. Dr. Stark concluded in his WC-16B dated April 4, 2007 the applicant's work injury on February 22, 2006 was a direct cause of his current condition as well as an aggravation, acceleration and precipitation of a previous injury beyond normal progression. Given the applicant's objective tests following the work incident on February 22, 2006, and given Dr. Stark's treatment notes as well as the applicant's testimony, the evidence was sufficient to establish that as a result of the applicant's slip and fall at work on February 22, 2006 he sustained a refracture of the fifth metacarpal leading to the need for treatment and temporary disability from May 23, 2006 through April 4, 2007. An interlocutory order was appropriately entered in this matter.

cc: Attorney Michael H. Gillick
Attorney Catherine A. Thomas

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