DERRICK MADISON, Applicant
MILSCO MANUFACTURING CO, Employer
TRAVELERS PROPERTY CASUALTY
COMPANY OF AMERICA, Insurer
In January 2007, the applicant filed an application for hearing seeking compensation for an injury on October 2, 2006. An administrative law judge (ALJ) for the Worker's Compensation Division of the Department of Workforce Development heard the matter on November 27, 2007. Prior to the hearing, the employer and its insurer (collectively, the respondent) conceded jurisdictional facts and an average weekly wage of $762 as of October 2, 2006.
At issue is whether the applicant sustained an injury arising out his employment with the employer while performing services growing out of and incidental to that employment. If such an injury is established, ancillary issues include the nature and extent of disability from the injury, and the respondent's liability for medical expenses.
On December 11, 2007, the ALJ issued his decision. The respondent filed a timely petition for review.
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 makes the following:
The applicant was born in 1970. He began working as a stapler and upholsterer for the employer, a business that makes marine and boat seats, in 1996. At the time of his injury on October 2, 2006, the applicant was stapling a backrest. As he pulled the vinyl over the backrest, he felt a sharp pain in his mid to upper back, between the shoulder blades, but he tried to work through it. As he was stapling another backrest, his hands slipped and his left arm hit the table and his right the backrest he was working on. At this point, his right elbow began hurting.
The applicant reported his injury to a coworker, Michelle, to whom injuries were normally reported. She asked if he wanted to go to a clinic for treatment, and he told her he would try to work through it.
The applicant sought treatment that same day at Advanced Healthcare--notes for this treatment are at exhibit 2. These include an October 2 entry listing the reason for visit as "back prob," and a complaint of mid back pain starting at work. The note went on to state:
... with [patient] doing seat upholstery for Harley Davidson, and while pulling vinyl, he experienced a sharp pain over the mid back radiating anteriorly. He had some discomfort with breathing after that. He left work to come here.... He had back spasms in the same area in Jan of this yr, while at work.
On examination, the doctor (Thomas R. Jensen) noted tenderness over the right parathoracic muscle with tautness, and limited flexion. Thoracic muscle strain was diagnosed.
When the applicant treated again on October 3, the reason for visit was listed as "elbow" and the note states:
[Patient] states he was pulling vinyl motorcycle seats yesterday and had sudden onset of [R] elbow pain. States pain has continued to get worse overnight. Has had tennis elbow in L arm. Sates pain this time is in R and also does not seem to be in forearm.
The note goes on to state:
...male presenting with pain in the right elbow region just started rather suddenly yesterday at work at Milsco where the pt is employed as an upholsterer where he pull hand on leather and stapling/securing it to a plastic base. Pt has had no prior problems with right elbow in the past and history of trauma to the right elbow.
The treating provider (Myron O. Bodner) thought tendonitis was the most likely diagnosis.
Dr. Bodner saw the applicant for elbow complaints again on October 5, saying his elbow felt "mushy" and that he was experiencing increasing pain. He complained, too, of a cracking noise with extension. He told the doctor his employer was still having him do some right handed work. The doctor took him off work until he could be seen by an orthopedist, and prescribed a sling to be worn during the day.
The applicant was then seen by Robert Churchill, M.D., on October 9. The note for this visit reports the applicant was right hand dominant, had no specific injury, and reported repetition in his work in upholstery. More specifically, Dr. Churchill's note reports
The patient is a 36-year old right hand dominant male who works for Milsco building seats for Harley Davidson Motorcycle. He injured his arm recently on 10/2/06. At that point he was pulling a vinyl seat covering on and felt a sharp pain in the medial aspect of his right elbow. He says it was quite intense and then slowly improved for the next several hours. Then he began experiencing a numbing pain type sensation which radiated down to his ulnar two digits in his hand. He states they were quite numb for approximately two days. Now he notes that that is improving but he is still experiencing a marked amount of elbow pain
On examination, the doctor noted the applicant was "completely appropriate with history and physical examination." He noted the cubital tunnel region was markedly tender and that he had a positive Tinel's sign. The doctor's diagnostic impression was right cubital tunnel syndrome, and he stated:
I have reviewed with the patient the fact that while he was pulling on that seat forcefully, he may very well have torn part of his epitrochlearis[(1)] musculature or caused some disruption over his cubital tunnel. His ulnar nerve is obviously irritated and excitable and on examination it does feel somewhat boggy in this location. I am going to recommend continue with the anti-inflammatories for two weeks and return to work with no use of the upper right extremity. He will follow in two weeks time.
The applicant also received physical therapy for his thoracic spine pain on October 10, and 12.
Around this time, the applicant treated at another clinic with Matthew Richlen, M.D., apparently because he was dissatisfied with his treatment with
Dr. Churchill. Dr. Richlen noted the work injury causing a sharp pain the elbow and back. Dr. Richlen diagnosed right-sided ulnar neuropathy and started the applicant on ibuprofen and referred him to physical therapy. The doctor also noted a rhomboid strain.
Returning to the Advanced Healthcare Clinic, the applicant saw Amanda Santiago-Marotz, M.D., for a two week follow-up of his right elbow injury on October 23--she noted that the applicant felt his right elbow complaints had worsened with increasing pain over the medial aspect of his elbow as well as increasing numbness and tingling in his right little and ring finger. On examination, she noted decreased sensation to the right little and ring fingers, and the ulnar aspect of his hand. She reported his elbow continued to have some mild swelling and was tender to palpation. Her diagnostic impression was
1. Traumatic right cubital tunnel syndrome and
2. Right flexor pronator muscle strain.
Dr. Santiago-Marotz's plan was:
...the patient ... may very well have injured his epitrochlearis musculature were [sic] his flexor pronator musculature. This may very well have injured his ulnar nerve as well. ...[G]oing to recommend a custom molded elbow splint to be worn on a near 24 hour basis. The occupational therapist will manufacture this as soon as possible. He will return to work with restrictions of no use of the upper right extremity. He will follow in three weeks' time. At that point [if he is] still having pain we will obtain an MRI to evaluate the extent of injury.
On October 23, the applicant underwent a "rehab physical exam" for the purpose of being fitted with a custom long arm splint. The note from that examination listed diagnoses of ulnar nerve lesion and sprain elbow/forearm. The note described the mechanism of injury as: "patient was pulling leather over a seat when he felt a pop and pain in his right elbow." The note listed the work demands as "stapler; doesn't need to lift but uses both hands for lots of pulling and manual work."
The applicant next returned to Dr. Richlen on October 25, still complaining of pain of severe intensity in his arm in the vicinity of the elbow. Noting the pain radiated into the applicant's fingers, he diagnosed right ulnar neuropathy.
About three weeks later, on November 13, the applicant returned to Dr. Churchill, whom he told his symptoms had actually gotten worse since he was given the splint. Dr. Churchill reported the applicant was still experiencing numbness and tingling over his little and ring fingers. Dr. Churchill also noted that the applicant "had seen an IME who recommended an MRI as well as EMG," recommendations with which Dr. Churchill concurred.
It appears the MRI was done on November 13. The MRI was negative for soft tissue swelling, injury, joint effusion or loose body, though there was a benign
enchondroma-appearing lesion. The EMG was done on November 15; it was normal with no evidence of neurologic changes.
At this point, the applicant was working with restrictions. On November 20 or 21, 2006, the employer's environmental health manager, Gregory Beck, having received a report from Dr. Orth (discussed below) stating the applicant could return to work with no restrictions, told the applicant to return to his stapling job. The applicant did not go back to those duties. He evidently had some type of discussion with a supervisor (Jim Lorbiecki) who did not testify.(2) The applicant did not return to work the next day, and was discharged.
The applicant discussed his MRI and EMG results with Dr. Churchill on November 27, 2008. At this point, he told the doctor his elbow as definitely improving with only a slight burning sensation but was otherwise again beginning to feel normal. The doctor concluded:
...his tests returned as normal with no signs of neurological injury and no evidence of soft tissue or joint injury as well. At this point he is pleased with his progress and would like to return to work without restrictions beginning tomorrow. I felt as though that was reasonable...
Regarding the cause, nature and extent of disability, the applicant submits a report from Dr. Richlen, who lists the October 2, 2006 date of injury, and refers to his notes for a description of the accidental event ("while he was pulling a cover over a plastic base while making a base, his hand slipped off causing a sharp pain in his back and elbow.") This event, Dr. Richlen felt, directly caused the applicant's disability. Dr. Richlen, who had apparently last seen the applicant on October 25, 2006 (and spoke by phone on November 20, 2006), declined to offer a permanent partial disability rating or set temporary or permanent work restrictions.
The applicant also offers a report from Dr. Churchill, whose report lists an October 2, 2006 date of traumatic event, and the following description of the accidental event:
Works as an upholsterer -- pulling on vinyl seat covering for motorcycle felt sharp pain in [right] elbow.
Dr. Churchill diagnosed
ulnar nerve lesion ... point tenderness cubital tunnel region, positive Tinel's sign, medial epicondyle is minorly tender. Impression [right] cubital tunnel syndrome.
The October 2 work injury, Dr. Churchill opined, directly caused the applicant's disability from that condition. Dr. Churchill also opined the applicant could return to work with no use of his right upper extremity on October 10, and return to work with no restrictions on November 27. He reported the applicant had no permanent partial disability.
The applicant also offers a September 17, 2007 letter Dr. Churchill wrote to the applicant's attorney regarding the applicant's work injury which states in part:
Patient was originally seen on October 9, 2006, at which point his restrictions were no use of the right upper extremity. He was then seen two weeks later on October 23, 2006, and again those restrictions were extended with no use of the right upper extremity. He did return on November 13, 2006, at which point an EMG and MRI were obtained; and he returned with the follow-up results on November 27, 2006. During this entire time, the restrictions were no use of the right upper extremity. At the November 27, 2006, date he was feeling better and requested to return to work the following day with no restrictions. That was provided.
Asked whether the injury was work related, Dr. Churchill replied:
Yes, his original date seen in the office was October 9, 2006, at which point he did describe a workplace injury where he was applying some upholstery and his injury appears consistent with that. I do feel as though all of his issues were work related.
The respondent retained Michael W. Orth, M.D., who examined the applicant on November 7, 2006. He felt the applicant's upper trapezial/upper thoracic complaints were consistent with a strain that had resolved, and actually just a manifestation of a pre-existing condition. Regarding the right elbow, the doctor opined it was possible the applicant had a cubital tunnel syndrome though he noted an EMG would be required to confirm the diagnosis and this--ultimately--turned out to be negative. Even if the EMG were to verify a cubital tunnel syndrome, Dr. Orth felt, it would have been a pre-existing condition that simply became manifest with the work exposure. He explained:
Doing the type of work that he does, he indicated in stretching a seat, he merely experienced the manifestation of a pre-existing condition/complaints. Doing one's normal exertive work does not constitute an injury.
Dr. Orth concluded that the applicant had reached maximum medical improvement as of the date of his evaluation (November 7), and could work without restriction or without the elbow brace.
On appeal, the respondent notes that that in the very first treatment only an upper back, not an elbow injury, was reported; that the MRI and EMG did not show any objective signs of an elbow injury; and that after those tests the applicant reported that his elbow was improving. The respondent asserts that it is hard to believe the applicant could so dramatically improve in a week from November 21 to November 27 to explain Dr. Churchill's continuance of work restrictions for that additional week. The respondent also states that it appears from the objective medical tests that Dr. Churchill's diagnosis of cubital tunnel syndrome (and presumably Dr. Richlen's diagnosis of right-sided neuropathy) was incorrect.
The commission need not accept Dr. Churchill's opinion as the precise diagnosis of the work injury to pay the compensation for temporary disability if the doctor credibly opined that the applicant was disabled by the work injury--however diagnosed--until November 27, 2006.(3) The commission is persuaded that the applicant probably suffered some type of strain or other injury in his upper back and elbow when he pulled on the seat cover on October 2 which resolved over time. The commission is not persuaded otherwise by Dr. Orth, who seems to state the applicant cannot have sustained an injury if he was simply performing his normal duties.
True, there is no objective evidence of injury like an x-ray showing a broken bone, an MRI showing a soft tissue tear, or a nerve injury showing up on EMG. However, the applicant's job required pulling while stapling to install the seat covers. In light of these duties, the commission, like the presiding ALJ, finds credible Dr. Churchill's opinion that the applicant sustained a work injury resulting in a period of disability requiring work restrictions.
The commission is also persuaded that work restrictions were warranted through November 27, 2006, as Dr. Churchill opined, Dr. Orth's opinion notwithstanding. Dr. Orth's earlier release without restrictions appears to have been based at least in part on his belief that the applicant had not suffered a significant injury. However, the commission concludes otherwise and, again, the nature of the applicant's normal duties in installing and stapling seat covers persuades the commission the restriction to one-armed work to November 27, 2006 was warranted.
In sum, the commission concludes that the applicant sustained an injury arising out of his employment with the employer while performing services growing out of and incidental to that employment. The commission further concludes that the applicant is entitled to temporary total disability benefits from November 21 to 27, 2006, both dates inclusive. At the weekly rate of $508 (two-thirds the average weekly wage of $762), his award equals $508.
Assuming a finding of liability, counsel for the respondent agreed that the insurer would pay reasonable and necessary medical expenses related to the injuries in an expected amount of $2,500 to $3,000. Because of the medical expense issue, and because the applicant may be entitled to further compensation under Wis. Stat. ch. 102, this order shall be left interlocutory.
NOW, THEREFORE, the Labor and Industry Review Commission makes this
The findings and order of the administrative law judge are modified to conform to the foregoing and, as modified, are affirmed.
Within 30 days, the employer and its insurer shall pay the applicant, Derrick Madison, Five hundred eight dollars and no cents ($508.00) as disability compensation.
Jurisdiction is reserved for further orders and awards as are necessary and consistent with this decision.
Dated and mailed September 9, 2008
maddisd . wrr : 101 : 6 ND
3.2, 8.23, 8.24
/s/ James T. Flynn, Chairperson
Robert Glaser, Commissioner
/s/ Ann L. Crump, Commissioner
On appeal, the respondent suggests a remand on the issue of medical expenses may be appropriate. The applicant told the ALJ before the hearing that he had about $2,500 to 3,000 in medial bills. This colloquy then occurred:
ALJ Phillips: Mr. Radloff [the respondent's attorney] agreed that if the bills are in the neighborhood of $2,300 to $3,000 and that those bills are reasonably related to eh claim made and of course underlying that, assuming [the applicant] prevails, he will cause his client to pay those medial bills. Is that a correct representation of our discussion, Mr. Radloff?
Mr. Radloff: Yes.
The ALJ's order included a finding that the respondent's attorney agreed that the respondent would pay reasonable and necessary medical expenses, related to the injuries in an expected amount of $2,500 to $3,000. The commission incorporated that finding in its decision, and like the ALJ reserves jurisdiction on the issue of medical expense in the event a dispute arises with respect to the payment of the expenses.
cc:
Attorney Brian Radloff
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