JENENE H LEHMAN, Applicant
NILSSENS SUPER VALUE, Employer
SECURA INSURANCE A MUTUAL CO, Insurer
In May 2008, the applicant filed an application for hearing alleging a repetitive use injury affecting both extremities from the repetitive nature of her employment as a cake decorator, and seeking, among other things, compensation for temporary disability as of February 18, 2008. An administrative law judge (ALJ) for the Worker's Compensation Division of the Department of Workforce Development heard the matter on September 22, 2008.
Prior to the hearing, the employer and its insurer (collectively, the respondent) conceded jurisdictional facts and an average weekly wage of $428. At issue was whether the applicant suffered an injury arising out of her employment with the employer, while performing services growing out of and incidental to that employment. If such an injury were found, ancillary issues included the nature and extent of disability from the injury, the respondent's liability for medical expenses, and the applicant's entitlement to an order directing the advance payment of medical expenses under Wis. Stat. § 102.18(1)(b).
On December 1, 2008, the ALJ issued a decision dismissing the application. The applicant 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:
1. Facts.
The applicant was born in 1960. In 1986, when she was working for another business, she experienced the sensation of her hand "falling asleep." She described her job duty at the time as "making crusts and I had to pinch all the way around every one of them." A doctor prescribed a brace, and told her to rest her arm, and the symptoms went away.
The applicant did not experience any similar symptoms for a number of years. On December 31, 2004, the applicant began working for the employer, a grocery store, where she was hired to do cake, cupcake and cookie decorating. She worked there for almost three years. She generally worked three days a week, Monday, Wednesday and Friday, averaging a 211/2 hour work week. During the Christmas season, however, she worked extra time.
The applicant's job as a cake decorator involved applying frosting that was contained in a tube. Some of the frosting was less dense and in a lighter bag, while cookie decorating, for instance, involved more dense frosting in a heavier bag. To put the frosting on, it was necessary to squeeze the piping equipment or tube with her fingers. The respondent introduced the frosting tubes or bags into the record as exhibit 2.
The applicant estimated that she spent 75 percent of her time squeezing frosting to decorate cakes and cookies. The remaining time she performed activities like mixing the frosting, moving trays of cookies, and putting away and rotating stock. The applicant had to use her fingers to grip to lift the trays of cookies to move trays, and the frosting was mixed by hand with a spatula. The respondent's witness, Stephanie Eng who now decorates cakes for the employer, estimated a worker might spend 20 percent of the time mixing frosting in a gallon bucket. Sugar frosting was more difficult to mix than whipped cream frosting.
The applicant experienced fatigue in her forearms with the activity of applying frosting on busy days around Christmas and school graduations. During these busier periods, the applicant experienced painful symptoms such as stiffness in her hand and soreness in her shoulder. The pain would resolve after a couple days of rest, though on some occasions she had to wear a wrist brace or she might try light massage.
The applicant's condition became significantly worse on December 3, 2007. After she decorated 20 dozen cookies on that day, the applicant felt a strain and pain which did not resolve with the passage of time. Specifically, her arm started getting sore after she did 15 dozen cookies. By 20 dozen, she had to stop. There were still 6 dozen to go, but she had to tell her manager she could not do them because her arm was sore and she did not want to push it. She went home and massaged her arm and iced it.
The next day, a Tuesday, was the applicant's normal day off. She then worked on Wednesday, but came in to work with a brace on her arm. She decorated another 12 dozen cookies, but her arm felt more sore after that and hurt worse.
When the applicant reported for work the following day, Thursday, December 6, 2007, there were 37 dozen cookies waiting to be decorated. The applicant managed to make it through decorating all of these cookies, but then pain prevented her from doing any more. She told a manager, Jason, that her arm was hurting too badly to continue, that she could not stand the pain, even after self medicating with ibuprofen.
The applicant then called her doctor and made an appointment for the next day, which was a Friday. A note from Gregory Estlund, M.D., dated December 7, 2007, recites the following history:
The patient presents today with pain right arm. Some numbness, tingling of the thumb, index, 3rd digit right hand, pain right wrist, pain right elbow, and biceps, as well as brachial radialis. Follows repetitive use. Did start using her husband's carpal tunnel splint. Is a little better, but still a lot of pain in the arm, especially, with use. She has worked this week after overuse, 20 dozen Christmas cookies decorated on the 3rd. Patient has carpal tunnel history. Years ago, back in 1986 she had a worker comp injury(1) ... She usually decorates cakes without problems.
On examination, Dr. Estlund noted tenderness in the right biceps. She also was tender in the dorsal and palmar wrist. There was a painful range of motion, and she had decreased sensation in the thumb, index and 3rd digit.
Dr. Estlund diagnosed carpal tunnel syndrome, as well as epicondylitis, overuse injury right brachioradialis, right biceps overuse, and synovitis in the right wrist. The doctor put the applicant in a carpal tunnel splint, and recommended work restrictions for a week pending reassessment.
When the applicant returned on December 17, 2007, the doctor reported "continues to have to have a lot of tennis elbow and carpal tunnel symptomology, wrist pain, elbow pain, as well as forearm soreness, and biceps soreness, related to overuse, work related." On examination, he noted tenderness over the lateral epicondyle and in the brachioradialis. He noted, too, a painful biceps, with a full range of motion at the wrist. He reported she had some decreased sensation in the median nerve distribution.
Dr. Estlund again assessed epicondylitis, carpal tunnel syndrome, brachioradialis strain, and biceps strain. He continued the work restrictions he had set earlier, and referred the applicant to physical therapy.
When the applicant saw Dr. Estlund again on January 3, 2006, the doctor reported her condition was improving, but still painful with repetitive use. She told the doctor she was pretty much back to her previous production, post holiday. On examination, he noted tenderness in the right wrist, and good sensation and grip strength. His assessment was "patient improving, using tennis elbow brace along with carpal tunnel brace, recovering from overuse injury."
When the applicant returned on January 17, 2008, Dr. Estlund noted that he and the applicant had discussed a possible return to work without limits during the prior visit, but that when the applicant had tried to work without a splint a day earlier, she again developed numbness in the right thumb, index and third fingers. He described the applicant as five weeks out from overuse injury, but still plagued by limitations. Diagnosing right lateral epicondylitis and right carpal tunnel syndrome, Dr. Estlund concluded that a consultation with orthopedics was warranted.
The applicant then saw an orthopedist, Thomas R. Comfort, M.D., on February 18, 2008. He stated:
a history of right upper extremity pain. She is a 48-year-old right hand dominant female who works as a cake decorator and developed progressive right upper extremity pain beginning in December 2007. She had developed marked wrist pain and elbow pain and pain radiating proximally towards the shoulder. She describes this now as basically whole arm pain. It is improved by rest. She was given some braces that did substantially decrease the numbness. Her neurologic complaints are primarily numbness and tingling involving the small, ring and middle finger of her right hand. She has lateral elbow pain and substantial night time numbness. She denies any history of specific injury.
The doctor's impression was probable lateral epicondylitis and possible ulnar neuritis and possible carpal tunnel syndrome. He recommended obtaining an EMG nerve conduction study, and took her off work for two weeks while waiting for the EMG.
The EMG was done on March 7, 2008, by Vesselina Mateva, M.D. Dr. Mateva interpreted the EMG as abnormal, consistent with bilateral median nerve mononeuropathies at the wrists such as seen in bilateral carpal tunnel syndrome. Dr. Mateva interpreted the carpal tunnel syndrome as moderate in the right and mild in the left arm.
Following the EMG testing, the applicant returned to Dr. Comfort on March 13, 2008. He recommended the applicant pursue a carpal tunnel release surgery, noting she had quite marked symptoms which were not abating even though she had been off work for more than four weeks. The applicant had some follow-up visits, including a follow-up visit with Dr. Estlund on March 17, 2008; he, too, recommended the applicant proceed with the carpal tunnel release surgery. However, by the time of the hearing (September 22, 2008), the applicant still had not had the carpal tunnel release surgery. She also had not worked since Dr. Comfort took her off work on February 18, 2008. The record contains expert medical opinion concerning the cause and extent of the applicant's disabling condition. Dr. Estlund, the applicant's primary care doctor, prepared a practitioner's report dated April 28, 2008. The report identifies the date of "traumatic event" as December 3, 2007, and recites that the "accidental event or work exposure" to which the applicant attributed her condition was
Repetitive nature of employment as cake decorator using a frosting piper and lifting and moving cookies and trays of cookies resulted in a repetitive use injury. Both extremities are impacted and related to the work environment.
Dr. Estlund reported that that "event" caused the applicant's disability by precipitation, aggravation and acceleration beyond normal progression of a pre-existing degenerative condition. He specifically marked "no" to the direct causation and "occupational disease" causation boxes. The doctor described the disability and diagnosis as
Painful limitation of use of both upper extremities and weakness right hand and now unable to use arms and hands more than a few minutes without pain.
He declined to set permanent work restrictions, noting that a carpal tunnel release procedure was pending. He felt the applicant's prognosis was good with carpal tunnel release.
The respondent's medical examination is by David Solfelt, M.D., whose report is dated March 28. 2008. He notes the applicant denied previous difficulty with the upper right extremity prior to December 3, 2007, but developed extensive symptoms involving the upper right extremity alleged to have resulted from 21/2 hours of cake decorating. He stated:
It is my opinion that the work exposure as described was not of sufficient magnitude, frequency, duration of or appropriate mechanism to produce a work- related injury. Symptoms beginning after only 21/2 hours of decorating 20 dozen cookies do not constitute a work exposure consistent [with] acute injury or development of a cumulative trauma disorder. In my opinion, symptoms that day more likely reflect the mere manifestation of a pre-existing condition.
Dr. Sofelt noted nonwork factors for development of carpal tunnel syndrome in the applicant included age, obesity, gender and a history of the inflammatory disorder lupus erythematusus. He thought these factors were far more likely than work exposure to be causative. He concluded:
I also note that [the applicant] is employed on a part-time basis in what would reasonably be considered a light-duty occupation with no risk of direct carpal tunnel compression or excessive vibratory exposure. It is therefore my opinion the symptoms in the upper right extremity are unrelated to the work exposure in question and reflect the mere manifestation and natural progression of nonwork-related conditions.
2. Discussion.
In his practitioner's report, Dr. Estlund indicated that a "traumatic event" precipitated, accelerated and aggravated beyond normal progression a pre-existing degenerative condition. However, in this case, there is no traumatic event that caused the applicant's complaints. Further, the only mention of a pre-existing condition in the treatment notes is a reference to treatment for carpal tunnel symptoms in 1986 (though Dr. Solfelt also suggesets the applicant had pre-existing carpal tunnel syndrome.)
On the other hand, Dr. Estlund's treatment notes--and his narrative description of the "accidental event or work exposure"--refer to overuse and the repetitive nature of the applicant's employment generally as a cake decorator using a frosting piper. The applicant's testimony further and credibly details the repetitive gripping or pinching involved in using a frosting piper. Dr. Comfort's initial treatment note refers to work as a cake decorator, as well as the development of progressive right upper extremity pain beginning in December 2007 with no specific injury.
In response to specific interrogatories, the report of Dr. Solfelt does rule out an appreciable period of workplace exposure as a cause of the applicant's condition. However, other than noting the applicant's part-time schedule, Dr. Solfelt's report primarily focuses on the one day's exposure on December 3, 2007, rather than on the entirety of her one-year work history with the employer. While some of the medical records indicate a relatively sudden onset of symptoms, the applicant did testify, persuasively, to some prior pain which would resolve after rest. The applicant's testimony that she spent 75 percent of her time squeezing frosting to decorate cakes and cookies went largely uncontradicted. Her hearing application and Dr. Estlund's opinion both note the repetitive nature of her employment generally and not just the repetitive nature of the work on a single day, December 3, 2007.
On this record, the commission cannot accept Dr. Solfelt's conclusion the work exposure as described was not of sufficient magnitude, frequency, duration of or appropriate mechanism to produce a work-related injury. Rather, the commission adopts as more credible Dr. Estlund's opinion that the applicant's disabling condition was caused by the repetitive nature of her employment as a cake decorator. The commission therefore concludes that the applicant's work as a cookie or cake decorator was an appreciable period of workplace exposure that was at least a material contributory causative factor in the onset or progression of her disabling condition), notwithstanding the fact that Dr. Estlund marked the box on the form report indicating that a traumatic event precipitated, aggravated and accelerated a pre-existing condition beyond normal progression.
The court of appeals has recently explained that:
Worker's compensation cases involve two types of compensable injuries: those caused by accidents, and those caused by occupational diseases. An accidental injury is one that "results from a definite mishap; a fortuitous event, unexpected and unforeseen by the injured person." An occupational disease injury is an injury that is "acquired as the result and an incident of working in an industry over an extended period of time." [Citations omitted.]
Wisconsin Insurance Security Fund v. LIRC, 2005 WI App 242, ? 10, 288 Wis. 2d 206. However, the court of appeals also stated in Shelby Mut. Ins. Co. v. DILHR, 109 Wis. 2d 655, 661 (Ct. App. 1982):
As Professor Larson notes, however, "This contrast between accident and occupational disease is gradually losing its importance, and awards are frequently made without specifying which category the injury falls in." 1B A. Larson, The Law of Workmen's Compensation § 41.31, at 7-357 (J. Duke ed. 1980).
Indeed, the commission generally rejects arguments that a medical expert marked the "wrong box," Gray v. Master Lock, WC Claim No. 94024018 (LIRC, April 30, 1996) and generally elevates the substance of narrative explanations given by doctors over the marked box in the form report. Neitzel v. Northcott Hospitality International, WC claim no. 2003-039230 (LIRC, July 31, 2007).(2)
The causal theories identified on the practitioner's report forms are legal theories adopted by the courts, rather than medical ones developed by doctors. Deciding whether the medical facts fit a particular theory thus has been characterized as a conclusion of law. See for example, Jos. Schlitz Brewing Co., at 67 Wis. 2d 185, 191-92 (1975). And, again, both the hearing application and Dr. Estlund's opinion both note the repetitive nature of the applicant's employment generally, putting the respondent on notice that occupational disease was at issue.
The commission acknowledges that the applicant had some predisposing factors--her weight, and her pre-existing lupus condition--but employers take their workers as they are.(3) Further, employment exposure need not be the sole cause or the main factor in a worker's disabling condition. City of Superior v. ILHR Department, 84 Wis. 2d 663, 668 note 2 (1978); Universal Foundry Co. v. ILHR Department, 82 Wis. 2d 479, 487-88 note 5. It is sufficient to show that work exposure was a material factor in the development or progress of the disabling disease. Id; Milwaukee M. & G.I. Works v. Industrial Commission, 239 Wis. 610, 615-16 (1942).
The commission therefore concludes that the applicant sustained an injury arising out of her employment with the employer, while performing services growing out of and incidental to that employment.(4) The commission further finds the applicant has been temporarily and totally disabled from that injury from the date Dr. Comfort took her off work (February 18, 2008) to the date of hearing (September 22, 2008).
3. Award.
As a result of her injury, then, the applicant entitled to compensation for temporary total disability from February 18 to September 22, 2008, a period of 31 weeks. At the weekly rate of $285.33 (two-thirds the applicant's average weekly wage of $428), the award for temporary disability is $8,845.33.
The applicant agreed to the direct payment of an attorney fee, set under Wis. Stat. § 102.26 at twenty percent of the disability compensation awarded, or $1,769.07. That amount shall be deducted from the applicant's award and paid to her attorney within 30 days. The remainder, $7,076.27 shall be paid to the applicant within 30 days.
The applicant has also incurred reasonable and necessary medical expenses to cure and relieve the effects of the work injury documented in exhibit B as follows: from Baldwin Med. Center $3,303.03, all of which is unpaid, and from St. Croix Orthopaedics, $471.78, all of which is unpaid.
Further, pursuant to the applicant's request under Wis. Stat. § 102.18(1)(b), the commission directs the respondent to pay medical expenses associated with the carpal tunnel release procedure recommended by Dr. Comfort, assuming he still recommends that procedure.
Based on the opinions of Drs. Comfort and Estlund that surgery is warranted, this order shall be left interlocutory to permit further orders and awards regarding temporary disability, permanent disability, and medical expenses that may arise after the date of hearing.
NOW, THEREFORE, the Labor and Industry Review Commission makes this
The findings and order of the administrative law judge are reversed.
Within 30 days, the employer and its insurer shall pay all of the following:
1. To the applicant, Janene M. Lehman, Seven thousand seventy-six dollars and twenty-seven cents ($7,076.27) in disability compensation.
2. To the applicant's attorney, Jason Whitley, One thousand seven hundred sixty-nine dollars and seven cents ($1,769.07) in attorney fees.
3. To Baldwin Med. Center, Three thousand three hundred three dollars and three cents ($3,303.03) in medical treatment expense.
4. To St. Croix Orthopaedics, Four hundred seventy-one dollars and seventy-eight cents ($471.78) in medical treatment expense.
The employer and its insurer are further directed to pay medical expenses associated with the carpal tunnel release procedure recommended by Dr. Comfort, assuming he still recommends that procedure.
Jurisdiction is reserved for further orders and awards as are consistent with this decision.
Dated and mailed July 9, 2009
lehmaje . wrr : 101 : 5 ND ?? 3.4,
3.43, 8.24
/s/ James T. Flynn, Chairperson
/s/ Robert Glaser, Commissioner
Ann L. Crump, Commissioner
MEMORANDUM OPINION
The ALJ dismissed the application because he was not persuaded by Dr. Estlund's expert medical opinion. For the reasons explained in the body of this decision, the commission credited Dr. Estlund's report. Because its reversal was based on a different conclusion regarding the credibility of the opinion of a medical expert who did not testify before the ALJ, no credibility conference was necessary. See Hermax Carpet Mart v. LIRC, 220 Wis. 2d 611, 617-18 (Ct. App. 1998).
cc:
Attorney Jason Whitley
Attorney Steve Cotton
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