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

KATHLEEN D REISCH, Applicant

UNITED HOSPITAL SYSTEM INC, Employer

UNITED HOSPITAL SYSTEM INC, Insurer

WORKER'S COMPENSATION DECISION
Claim No. 2007-039414


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 December 17, 2008
reiscka . wsd : 175 : 6 ND §§ 5.6, 5.9-

/s/ James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

MEMORANDUM OPINION

The employer asserts in its petition for commission review the administrative law judge erred in determining the applicant sustained a work related right hand injury as of July 17, 2007 resulting in temporary total disability from November 1, 2007 to November 14, 2007, and 1 percent permanent partial disability at the right wrist as well as medical expense. The employer asserts the administrative law judge should have credited the opinion of Dr. Brown, who examined the applicant's medical records on behalf of the employer, and reviewed the video tape of the applicant performing her work as a switchboard operator for the employer. Dr. Brown opined it is not medically probable the applicant's right carpal tunnel syndrome and right ring finger stenosing tenosynovitis are related to her work activities as a switchboard operator but rather she experienced only a manifestation of an underlying condition. Dr. Brown stated the applicant's work does not involve any of the recognized risk factors for carpal tunnel syndrome, and there is no significant hand force or abnormal wrist posture or wrist repetition, and no palmar localized compression, or apparent vibration in her work.

The applicant who began working for the employer in October 2005 testified that her job involved continual use of her hand to punch rubber like buttons on a console and to make notes in a log of phone calls with patient's names, the doctor's name, and other relevant information. The applicant testified she had the onset of right hand symptoms beginning in January of 2007 which gradually worsened until she finally sought treatment with Dr. Gershtenson in July 2007. Dr. Gershtenson diagnosed the applicant with right long trigger finger, right medial neuropathy, and right carpal tunnel. The applicant underwent right carpal tunnel release with right long finger and right ring finger release procedures on November 1, 2007.

The employer contends the evidence did not establish that the applicant's work was sufficient to aggravate, accelerate and precipitate a preexisting condition beyond its normal progression. The employer contends the administrative law judge should have credited the testimony of Ms. Trempt, one of the applicant's co-worker's as an operator switchboard operator, who testified the work on the second shift where the applicant performed her work was slower than on the first shift. The administrative law judge appropriately noted that regarding the video tape, the applicant's co-worker and the employer's attorney acknowledged that the video tape was shot during a lull in work activities during a portion of the day when call logging was low.

The commission credits the applicant's testimony of her work activities for the employer which required repetitive use of her right upper extremity to operate the switchboard and punch numbers as well as take notes and prepare a log. Dr. Gershtenson indicated in his WKC-16-B dated March 17, 2008, the applicant's work for the employer as a switchboard operator aggravated accelerated and precipitated her preexisting condition beyond it's normal progression. Dr. Gershtenson stated in his treatment notes on November 16, 2007 following the applicant's surgery that in terms of causality he could see no reason why this would not be work related. Dr. Gershtenson noted the applicant was asymptomatic and subsequently started at the keyboard as previously noted when she had the onset of symptoms. The applicant testified that she suffered the stiffness and pain in her right upper extremity while performing her work as a switchboard operator, and subsequently she developed symptoms of carpal tunnel syndrome at night while sleeping.

The commission credits Dr. Gershtenson's findings that the applicant's work for the employer aggravated, accelerated and precipitated a preexisting condition beyond its normal progression resulting in the need for surgery and 1 percent permanent partial disability. There is no evidence the applicant had any prior problems with her right upper extremity or symptoms of carpal tunnel before working for the employer. The fact that the applicant exacerbated her symptoms while performing carpet cleaning in August 2007 does not undercut the credibility of Dr. Gershtenson's assessment that the applicant's work for the employer aggravated, accelerated and precipitated a preexisting condition beyond its normal progression.

The employer contends in its petition for commission review the administrative law judge erred in determining that the applicant was entitled to temporary total disability benefits from November 1, 2007 to November 14, 2007. The employer points to the fact the applicant was given a work excuse from Dr. Zeihen from November 6, 2007 through November 13, 2007 for bronchitis and not for her hand injury. The evidence does not establish that the applicant's bronchitis was both independently disabling and delaying treatment for her work injury. Anderson v. Servicemaster Professional, WC Case No. 2002-025737(commission decision dated April 4, 2005). Dr. Gershtenson indicated in his WC-16-B the applicant was off of work and unable to work between November 1, 2007 and November 13, 2007. Dr. Gershtenson released the applicant to return to work as of November 16, 2007. The fact that Dr. Zeihen authorized the applicant to be off of work from November 6, 2007 to November 12, 2007 for her bronchitis does not negate the fact that the applicant was already off of work and treating due to her work related injury and surgery. Therefore the administrative law judge appropriately awarded the applicant temporary total disability benefits from November 1, 2007 to November 14, 2007, both dates exclusive.

 

cc: Attorney John P. Higgins
Attorney Robert P. Ochowicz


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