BETTY POST, Applicant

WALGREEN CO ILLINOIS, Employer

ZURICH AMERICAN INSURANCE CO, Insurer

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.

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

Dated and mailed July 22, 2010
postbet : 175 : 5 ND6 6.21

/s/ James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

Ann L. Crump, Commissioner

The applicant asserts in her petition for commission review the administrative law judge erred in determining the applicant is not permanently and totally disabled as a result of her work injuries, but rather the applicant suffered 30 percent loss of earning capacity to the body as a whole as a result of the work incident in
November 2003 and March 2008. The applicant points to the fact she injured her neck and upper back as a result of the traumatic incident on November 12, 2003, while standing on a ladder when the binder clip caught and the binder weighing approximately four to five pounds started to fall backwards toward her and she grabbed the binder with both hands and hyper extended her back as she went backwards.

The applicant's objective tests did not reveal any breakage or disc herniation in her cervical or thoracic spine but there was evidence of cervical degenerative disc disease. Dr. Keil, the applicant's treating physician, did not recommend the applicant undergo surgery, although she underwent extensive physical therapy and injections.

Following her release to return to work by Dr. Keil in March 2005, the applicant testified she continued to suffer myofascial pain and pain flare-ups in her neck, thoracic back and shoulders for several years following the work incident in November 2003. The applicant testified beginning in June 2007, she assumed additional duties after a coworker retired, which involved handling and checking a great deal of paperwork and doing fine sorting. The applicant described that she had to repeatedly pronate and supinate her right forearm to sort through all of the papers and she began to experience a burning pain in her right elbow.

The applicant contends the combination of her cervical and thoracic neck injuries, as well as her right elbow injury, make her permanently and totally disabled. Pursuant to Mireles v. LIRC, 237 Wis2d 69 (2000) an applicant can make a claim for permanent total disability based on a combination of scheduled and unscheduled injuries pursuant to Wis. Stat. § 102.44(2), if the unscheduled injuries constitutes a substantial portion of the applicant's disability, and, taken as a whole, the applicant's restrictions from her work-related scheduled and unscheduled injuries equates to making the applicant unemployable on an odd lot basis. As the administrative law judge appropriately noted, a finding of permanent total disability based on a combination of scheduled and unscheduled injuries is a discretionary one and the department must find the facts. The commission does not agree that because the applicant was able to return to work performing clerical work, which was sedentary or of light work nature, negates her claim in and of itself for permanent and total disability. The applicant's ability return to work for several years following the initial injury in 2003 prior to her onset of right epicondylitis in 2008, is evidence the applicant could perform work given her cervical condition, but it does not negate the claim.

Rather, the commission must look at the applicant's restrictions and ability to work subsequent to her right elbow onset, her restrictions following her last day of work in March 2008. Based on the restrictions for the applicant's neck and back injuries, she is able to perform sedentary and light clerical work as noted by her own vocational consultant due to those restrictions only. Dr. Midthun correctly assessed the applicant's permanent disability for her neck and thoracic back problems at three percent permanent partial disability to the body as a whole.

The applicant suffered a relatively minor work incident to her neck and thoracic spine, which was originally diagnosed as a back muscle strain. Clearly the applicant has had ongoing symptoms and need for treatment for back pain which has developed into myofascial and chronic cervical pain. The commission credits Dr. Keil's assessment that the applicant's restrictions and ongoing need for treatment are real and not imagined. The applicant's treatment notes and objective tests reveal an ongoing chronic pain condition which waxes and wanes, but clearly restricts the applicant in her ability to work.

The commission credits Dr. Keil's assessment the applicant's right epicondylitis developed in 2008, due to her repetitive work with the employer involving repetitive pronation and supination of her right forearm to sort through papers. Dr. Keil initially provided severe lifting restrictions for her right elbow condition of no more than two pounds. However, Dr. Keil's assessment was made in October 2008. The applicant's current medical treatment records, as well as her testimony at the hearing, indicate her right elbow condition is greatly improved since Dr. Orth's assessment. The applicant has not undergone any surgery for her elbow or neck and back complaints and there was no breakage found due to the work incident in November 2003.

The administrative law judge found the substantial portion of the applicant's vocational disability stems from her scheduled elbow injury. However, the extent of the continuing disability is in question since the applicant's current condition is improved over the assessment made in October 2008, according to her own testimony. Given her ability to work and based on her transferable skills and given her current right elbow condition, the commission does not find the applicant has established she is so disabled as to be permanently and totally disabled.

The commission agrees with the administrative law judge the applicant currently has a 20-pound lifting restriction due to her neck and back injury and she must avoid prolonged or static neck postures and she should change positions frequently. These restrictions did not prevent her from performing other clerical work. Based on Mr. Wisniewski's assessment, as well as Ms. Goldsmith, the administrative law judge appropriately found the applicant suffered 30 percent loss of earning capacity due to her residuals for her neck and back injuries only. The commission finds the applicant has suffered ten percent permanent partial disability at the right elbow, and she reached a healing plateau as of October 6, 2008, for her right epicondylitis condition. The administrative law judge appropriately reserved jurisdiction in this matter.

cc: Attorney Robert A. Kay
Attorney James G. Budish

Appealed to circuit court.  Affirmed February 28, 2011

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