KRISTINE M PAULOWSKI, Applicant

BED BATH & BEYOND, Employer

ARCH 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 December 17, 2010
paulokr . wsd : 175 : 9 ND6 6.19

James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

The employer asserts in its petition for commission review the administrative law judge erred in determining pursuant to Wis. Admin Code § DWD 80.32(10) the applicant suffered 25 percent loss of use at the knee entitling her to 106.25 weeks of permanent partial disability for a total of $27,837.50. The applicant was injured while working for the employer on August 12, 2007 when she slipped off the last rung of a ladder and sustained a twisting injury to her left foot and ankle. The applicant treated with Dr. Sommer who noted the applicant suffered from superficial peroneal nerve involvement which has led to a sensory deficit. The issue in this case is whether the applicant is entitled to 25 percent permanent partial disability for peroneal nerve paralysis at or below the level of the knee pursuant to Wis. Admin. Code § DWD 80.32(10).

Dr. Sommer indicated on June 19, 2008 that due to her work injury the applicant is complaining of some sensory deficit along the dorsal lateral aspect of her left lower extremity. Dr. Sommer stated there was sensory deficit as described by the patient along the dorsal lateral aspect of the left foot when compared to the right. Dr. Sommer did not find sensory deficit elsewhere on the foot, ankle or lower leg. Active dorsiflexion on the left side was 5 degrees of dorsiflexion and the right side was 15 degrees. Dr. Sommer opined the applicant suffered a total body disability of 6 percent, 3 percent for the decreased motion at the ankle joint, and 3 percent for her serial and superficial peroneal nerve involvement giving her sensory deficit that she is experiencing on the dorsal lateral aspect of her left foot.

Dr. Haffar completed a report on behalf of the employer dated April 14, 2009. Dr. Haffar found very minimal weakness in the dorsiflexion on the left compared to the right side. Dr. Haffar noted the applicant has moderate reduction of pinprick at the dorsal lateral foot at the distribution of superficial peroneal nerve. Dr. Haffar stated the applicant has a component on both the minimal motor involvement of the deep peroneal nerve, and minimal sensory involvement of the superficial peroneal nerve. Dr. Haffar stated it is clear the applicant does not suffer from a complete paralysis of the peroneal nerve. Dr. Haffar assessed the applicant with 5 percent permanent partial disability for both the motor and the sensory component to her left lower extremity.

The department determined the applicant was entitled to 25 percent permanent partial disability based on the provisions of Wis. Admin. Code § DWD 80.32(10). The heading for DWD 80.32(10) is "Complete sensory loss." Underneath the heading is the listing for digits, elbows, wrists and fingers and in the last component, peroneal nerve paralysis at level below knee 25 to 30 percent at the knee.

The employer argues the heading to Wis. Admin. Code § DWD 80.32(10) which refers to "complete sensory loss" is to indicate what types of conditions will be located beneath it. The employer states that under DWD 80.32(10) all subsections which do not involve complete sensory loss state this clearly in their description, and thus it is evident the headings are meant to control the content of the sections unless specifically stated otherwise. The employer argues the subsection at issue listed simply as peroneal nerve paralysis without any qualifying description indicates that it should be applied only to conditions of complete sensory loss or peroneal nerve paralysis. The employer states that as opined by both Dr. Sommer and Dr. Haffar the applicant suffers only from peroneal nerve involvement and not complete sensory loss, and therefore the applicant is not entitled to 25 percent permanent partial disability at the knee pursuant to Wis. Admin. Code § DWD 80.32(10).

It is clear the applicant suffers from sensory loss and some amount of peroneal nerve paralysis as a result of her work injury in August 20, 2007. Both Dr. Haffar and Dr. Sommer note the applicant's peroneal sensory loss. The employer argues that the heading to § DWD 80.32(10) indicates what type of conditions will be located beneath it. However, under the Administrative Rules Procedures Manual, Wisconsin Legislative Council, section 105 dealing with titles states: "Titles to any unit of a rule are not part of the substance of the rule itself."

The fact the drafters to the rule felt it necessary to delineate total median sensory loss of the hand and total ulnar sensory loss to the hand in descriptions under the heading "Complete sensory loss" indicates there are other components under the rule which do not contain the heading total, something less than complete sensory loss is contemplated as sufficient for an award of permanent disability. There is nothing in the rule which requires complete peroneal nerve paralysis at level below knee.

A finding the applicant's partial sensory loss and paralysis at the left foot due to a work injury is sufficient for an award of 25 percent permanent partial disability below the knee is consistent with the legislative purpose the act be liberally construed. The administrative law judge appropriately noted that other components of the rule in § DWD 80.32(10) for ulnar nerve paralysis contain provisions respecting sensory involvement, or motor and sensory involvement, or motor involvement only, which are different entities entirely, even though they come under the subsection "Complete sensory loss." The evidence indicates the applicant suffers from peroneal nerve paralysis in her left lower extremity and therefore pursuant to DWD 80.32(10) she qualifies for the rating of 25 percent permanent partial disability at the knee.

cc: Attorney Douglas Feldman

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