CRYSTAL REID, Applicant
METAVANTE, Employer
SENTRY INSURANCE A MUTUAL CO, Insurer
Metavante and Sentry Insurance Company (respondents) submitted a petition for commission review alleging error in the administrative law judge's Findings and Order issued in this matter on October 29, 2007. The applicant submitted an answer to the petition and briefs were submitted by the parties. At issue are whether or not the applicant sustained bilateral carpal tunnel syndrome and/or left ulnar nerve entrapment arising out of and in the course of her employment with the employer, and if so, what are the nature and extent of disability and liability for medical expense.
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 her Findings and Order. The commission makes the following:
The applicant, whose birth date is February 27, 1972, began working for the employer on January 5, 1998. She began this employment as a product analyst, then became a junior business analyst, and subsequently a senior business analyst. In 2002, she requested an ergonomic evaluation of her workstation because she was experiencing pain and numbness in her arms and hands when working on her computer. Her arms were "pretty much equally symptomatic" while her left hand was "a little more symptomatic" than her right hand (she is left-hand dominant). Changes were made in her workstation.
In April 2004, the employer agreed to allow the applicant to perform most of her work duties at her home. She worked there with a laptop computer and performed data entry, typing, and e-mailing duties. She also made frequent telephone calls and performed filing duties. During the spring of 2006, she experienced cramping and numbness in her hands, and had trouble sleeping due to the symptoms. She saw Dr. Mark Szmanda on March 28, 2006, for follow-up treatment of her history of migraine headaches, and also for "persistent numbness and tingling in her hands." On April 10, 2006, Dr. Szmanda performed nerve conduction studies of the applicant's wrists and elbows, and opined that the results showed moderate carpal tunnel syndrome and mild ulnar nerve entrapment neuropathy at the cubital tunnel, both on the left. He did not find any other evidence of peripheral or entrapment neuropathies.
On June 22, 2006, the applicant began treating with Dr. Wayne Brearley for her ongoing left arm and hand pain. Dr. Brearley indicated in his clinic note that this pain had been ". . . ongoing for several years and was not associated with any accident." Dr. Brearley diagnosed left carpal tunnel syndrome and left ulnar neuropathy, but did not offer an opinion with regard to causation. On July 11, 2006, Dr. Brearley performed a left carpal tunnel release together with a left ulnar nerve transposition. His postoperative diagnoses were left carpal tunnel syndrome and left ulnar neuropathy, but again he submitted no opinion regarding causation. The surgeries "did help some" with the applicant's symptoms, but she continues to experience discomfort as Dr. Brearley last related in his clinic note of April 30, 2007:
"Ms. Reid returns following left carpal tunnel release and left ulnar nerve transposition. She has had some improvement in the pain in that arm but is not completely satisfied with the results. She continues to have some issues with weakness and coordination of the hand. She also complains of continued pain in the thenar eminence on the right."
In a WKC-16-B dated March 6, 2007, Dr. Szmanda opined that on June 23, 2006, the applicant sustained a work-related precipitation, aggravation, and acceleration of a preexisting condition beyond its normal progression.
At respondents' request, Dr. Curtis Crimmins reviewed the applicant's medical records together with a DVD video of the type of work the applicant performed. In his report dated July 21, 2006, Dr. Crimmins opined that the applicant had left carpal tunnel syndrome, but that it was not work-related. Dr. Crimmins opined:
"It is now well accepted that only those work activities that require significantly repetitive power gripping can be definitely associated with carpal tunnel syndrome."
Dr. Crimmins examined and evaluated the applicant in person on July 10, 2007, and noted that she continued to experience left hand and arm pain despite her surgery. He suggested an MRI study of the applicant's neck be performed, as well as testing to rule out connective tissue disorders. He reiterated his opinion that the carpal tunnel syndrome was not work-related, and added that he did not believe the ulnar nerve entrapment was work-related.
In her order, the administrative law judge accepted Dr. Szmanda's opinion concerning causation, and awarded temporary total disability as well as medical expense relative to the applicant's treatment for her left carpal tunnel syndrome and left ulnar nerve entrapment. No specific finding was made concerning the right carpal tunnel syndrome claim, but the order was left interlocutory. The commission consulted with the administrative law judge regarding the applicant's credibility and demeanor when testifying at the hearing held on August 7, 2007, and learned that she found the applicant to have been a very credible witness. The commission also found the applicant's testimony to be credible.
The applicant's work duties for the employer required repetitive use of her left hand and arm, particularly given the fact that she is left-hand dominant. It is undisputed that changes were made in her workstation in 2002, due to bilateral hand and arm symptoms, left worse than right. Additionally, Dr. Szmanda performed nerve conduction studies that objectively identified left carpal tunnel syndrome and ulnar nerve entrapment. The applicant continued to perform work duties at her home that required repetitive use of her left hand and arm, and her symptoms persisted and worsened. While it may have been more accurate for Dr. Szmanda to have indicated that the applicant sustained occupational disease injuries to her left wrist and elbow as of June 23, 2006, rather than precipitation, aggravation, and acceleration of preexisting conditions, he did opine that the applicant's work duties were medically causative of the applicant's left carpal tunnel syndrome and left ulnar nerve entrapment. It has been routinely noted by the commission that in particular cases there may be no useful distinction between the two legal causation theories of occupational disease and precipitation/aggravation/acceleration of a preexisting condition.(1) The applicant's case is one of those in which either legal theory would be applicable, given Dr. Szmanda's credible medical causation opinion. It is that medical opinion upon which the commission bases its finding of work causation. The commission therefore concurs with the administrative law judge's finding of work causation for the applicant's left carpal tunnel syndrome and left ulnar nerve entrapment.
The applicant also claimed work-related right carpal tunnel syndrome, but no medical opinion was submitted supporting such claim, and it is therefore dismissed.
The applicant claimed temporary total disability from June 23, 2006 to October 1, 2006, and from January 5, 2007 to August 7, 2007. Dr. Brearly's and Dr. Szmanda's clinic notes support findings of temporary total disability from June 23, 2006 to October 1, 2006, and from January 5, 2007 to April 30, 2007, but not for any later dates. On April 30, 2007, Dr. Brearly indicated the applicant had reached "maximum benefit" from the carpal tunnel surgery. With regard to the ulnar nerve surgery, Dr. Brearly noted on that date that the applicant might continue to experience increase in strength and sensation at the elbow, but he did not indicate that he contemplated additional medical treatment. There is no indication that Dr. Brearly or Dr. Szmanda did continue to treat the applicant for either the carpal tunnel or the ulnar nerve entrapment after April 30, 2007, other than to record occasional complaints of residual symptoms. Dr. Szmanda completed a WKC-16-B on March 6, 2007, in which he answered "unknown" to the question asking when the applicant's condition had or would reach a permanent plateau, and other than this vague statement and Dr. Brearly's statement of April 30, 2007, there is nothing in the record from the applicant's physicians addressing the question of temporary disability.
Accordingly, the applicant is entitled to temporary total disability for the inclusive periods of June 23, 2006 to October 1, 2006 (14 weeks and 2 days), and from January 5, 2007 to April 30, 2007 (16 weeks and 4 days). The total is therefore 31 weeks at the applicable rate of $666.67 per week, for a total of $20,666.77. A 20 percent attorney's fee will be subtracted from this payment.
Reasonable medical expenses shall be paid as set forth below. In accordance with Dr. Szmanda's opinion, jurisdiction will be reserved with respect to the possibility of future disability and/or medical expense claims. Jurisdiction is also reserved with respect to any claim under Wis. Stat. § 102.35(3).
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, respondents shall pay to the applicant the sum of Sixteen thousand five hundred thirty-three dollars and forty-two cents ($16,533.42); to applicant's attorney, Daniel R. Schoshinski, fees in the amount of Four thousand one hundred thirty-three dollars and thirty-five cents ($4,133.35); to Orthopedic Associates of Wausau the sum of Two thousand eight hundred forty-six dollars and eleven cents ($2,846.11); to Central Wisconsin Anesthesiology of Wausau the sum of Nine hundred fifty-four dollars and ninety cents ($954.90); to Aspirus Hospital of Wausau the sum of Four thousand nine hundred seventy-four dollars and seventy-one cents ($4,974.71); to Aspirus Kronenwetter Clinic of Wausau the sum of Two hundred thirty-one dollars and seventy-seven cents ($231.77); to Dr. Mark Szmanda in c/o Langlade Memorial Hospital of Antigo the sum of Two thousand seven hundred seventy-seven dollars and six cents ($2,777.06); to Sport and Spine Clinic of Wausau the sum of One thousand ninety-seven dollars and thirty-seven cents ($1,097.37); to Medical Assistance EDS the sum of Two thousand nine hundred eighty-nine dollars and fifty-three cents ($2,989.53); to Security Health Plan the sum of One thousand four hundred ninety-five dollars and fifty-six cents ($1,495.56); and to the applicant as reimbursement for medical mileage expense the sum of Four hundred twenty-eight dollars and ninety-two cents ($428.92).
Jurisdiction is reserved for such further findings and orders as may be warranted.
Dated and mailed May 29, 2008
reidcr . wrr : 185 : 8 ND §§ 3.4; 3.37
/s/ Robert Glaser, Commissioner
/s/ Ann L. Crump, Commissioner
JAMES T. FLYNN, Chairperson (dissenting):
The applicant failed to present credible medical evidence in support of her claims. The only medical evidence supporting the majority's findings of work-related left carpal tunnel syndrome and left ulnar nerve entrapment is Dr. Szmanda's WKC-16-B of March 6, 2007 (Applicant's Ex. F). In that document, Dr. Szmanda merely checked a causation box, and wrote "See records" when asked to give a diagnosis, and when asked to describe the alleged work event or exposure. Dr. Szmanda's medical records do contain diagnoses of left carpal tunnel syndrome and mild ulnar nerve entrapment at the left cubital tunnel. However, nowhere in any of the medical records is there a description of either condition as being work-related, nor do any of Dr. Szmanda's medical records so much as mention the applicant's work duties for the employer.
On March 28, 2006, the applicant complained to Dr. Szmanda of "persistent numbness and tingling in her hands," when seeing him for follow-up treatment of chronic headaches. Dr. Szmanda indicated he would order nerve conduction studies but he did not mention the applicant's work. After those studies Dr. Szmanda rendered his diagnoses, but again, none of his clinic notes ever mention the applicant's work or work causation. Thus, there is no medical explanation for Dr. Szmanda's checking of the causation box on his WKC-16-B. This omission is all the more significant given the fact that the applicant worked primarily at home from April 2004 forward, and she gave no detailed testimony regarding that work other than stating:
"I use my hands quite a bit for typing on a keyboard."
There is no opinion from Drs. Szmanda or Dr. Brearly anywhere in the record to the effect that any amount of typing on a keyboard caused the applicant's left carpal tunnel syndrome and/or her left ulnar nerve entrapment. The closest thing to a mention of the applicant's work activities is found in Dr. Brearly's clinic note of June 22, 2006, in which he recounted:
"Ms. Reid is a 34-year-old, left-hand dominant business analyst complaining of pain in the left arm. This has been ongoing for several years and was not associated with any accident. It is becoming increasingly difficult for her to perform even office activities because of pain and paresthesias in this hand."
Dr. Brearly's observation leads to the inference that he believed the applicant's left arm/hand pain affected her ability to perform office work, not that the office work had been causative of any arm or hand pathology. Even though Dr. Brearly operated on the applicant's wrist and elbow, he did not submit an opinion linking the carpal tunnel syndrome or the ulnar nerve entrapment to the applicant's work activities.
The applicant has the burden of establishing a credible case for work causation.(2) I sympathize with the applicant's medical conditions, but she failed to carry the burden of credibly establishing that either of them was causally related to her work for the employer. I believe the majority's findings are intuitive, and do not constitute defensible factual or legal conclusions.
/s/ James T. Flynn, Chairperson
cc:
Attorney Daniel R. Schoshinski
Attorney Paul Riegel
Attorney Pamela M. Ploor
[ Search Decisions ] - [ WC Legal Resources ] - [ LIRC Home Page ]