DONNA L FARNESS, Applicant

JANESVILLE JANITOR SERVICE, Employer

SECURA INSURANCE A MUTUAL 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.

March 30, 2011
farness.wsd:101:9 ND6 10.2

BY THE COMMISSION:

/s/ Robert Glaser, Chairperson

/s/ Ann L. Crump, Commissioner

Laurie R. McCallum, Commissioner

1. Facts and posture.

The applicant was born in 1963. She worked for the employer, a contract janitorial service, cleaning school classrooms and hallways. She seeks compensation for an injury she alleges occurred on June 19, 2006.

On that date, the applicant and a co-worker were moving furniture from a hallway into a room they had cleaned. Her co-worker, Russ, was moving stacked chairs. In order to get this stack of chairs into the room, Russ had to tip it. The top chair started to fall from the stack, and the applicant reached out to catch it. The chair struck her arm between the elbow and shoulder. She felt pain, but continued moving the furniture back into the room. She described a direct strike from the chair to her arm, rather than a glancing blow. She estimated the weight of the chair that fell on her arm was between 20 and 25 pounds.

After the injury, the applicant had pain down her arm and a large bruise. She treated an urgent care clinic that day where she was examined and referred to a sports medicine doctor, Dr. Delo. Thereafter, she treated with Amarish Dave, M.D., and Steven I. Grindel, M.D. On August 14, 2008, Dr. Grindel noted ongoing and persistent problems with the left shoulder consistent with calcific tendinitis. He recommended surgery. Specifically, on September 10, 2008, Dr. Grindel performed a:

1. Diagnostic arthroscopy, left shoulder joint.
2. Arthroscopic subacromial debridement.
3. Open debridement of left supraspinatus.
4. Open rotator cuff repair.
5. Open os acromiale repair.

The issue in this case is the relationship between the applicant's work injury in June of 2006 and her current left shoulder condition. Both sides have submitted expert medical opinion.

The applicant, for its part, relies on the report of Dr. Grindel dated June 2, 2009 (Exhibit A). In his report, the doctor refers to his medical notes both for the description of the accident to which the applicant attributes her condition and for his diagnosis. He marked affirmatively a box on the form report to indicate that the event of June 19, 2006 directly caused the applicant's disability. He estimated permanent partial disability at 8 percent, described her prognosis as good, and stated that he did not believe that she had any permanent disability before the work injury.

In his treatment note of August 14, 2008, Dr. Grindel gave the following opinions regarding causation:

Now over the course of the last few visits that we had had together, Ms. Farness and I have talked about causation with respect to her left shoulder. She attributes her left shoulder complaints to an incident when she was working for the school district and a chair fell. The chair was stacked, and it was at least chest height or higher. The chair weighs 20-25 pounds, and it fell onto her left arm at the deltoid insertion, and this pulled her arm down, and since that time she had a flare-up of symptoms to her left shoulder. Because of some of the complaints that she was having at the time, it really took a long time to really definitely diagnose her problem. She had seen multiple doctors by the time she saw me, and there was a question [as] to whether this was causally related to that incident. I want to clarify that she was working at the time not for the school district but for a subcontractor that cleans and maintains the schools.

In discussing the mechanism of this injury, what I have stated is that the calcific tendinitis was not caused or aggravated by this incident. The rotator cuff tendinopathy in my opinion is more likely than not related to the calcific tendinitis and, therefore, it is unclear if it was materially aggravated by this incident and certainly was not caused by this incident. The os acromiale is a congenital problem. She never had a problem with that before. She has pain. The os acromiale she never had a problem with before and has current problems with it. In my opinion this problem while not caused by was likely aggravated by this incident of a chair falling on her shoulder.

Now she has an opinion from another outside physician indicating that in their opinion the rotator cuff tear was caused by the chair falling on her shoulder, and I have explained to her that there is some different in the opinions then between that doctor and myself as to causation with respect to the rotator cuff. She is in agreement with what I have stated so far. Her questions are answered. She would like to proceed surgically. This will be arranged at her convenience.

The employer and its insurer (collectively, the respondent) rely on the opinion of James Self, M.D. In his first reported dated January 8, 2008, he opined the applicant had suffered a blunt trauma to the left proximal arm with a contusion at work on June 18, 2006, but that she had preexisting calcific tendinitis at the left shoulder and current complaints of pain between the medial border of the left scapula and the thoracic spine. Regarding causation, Dr. Self stated:

The left arm contusion was related to the work injury of 06/19/06. The left shoulder calcific tendinitis was pre-existing in nature and not related to the work injury 06/19/06. The current pain between the medial border of the left scapula and the thoracic spine is not related to the work injury of 06/19/06.

As to whether he believed the work injury caused a temporary aggravation of the preexisting condition, Dr. Self stated:

No, the injury on 06/19/06 did not cause a temporary aggravation of the pre-existing condition of calcific tendinitis of the left shoulder.

2. Discussion.

The ALJ generally credited Dr. Grindel's medical opinion, but dismissed the hearing applicant without prejudice, and without awarding any compensation, so that Dr. Grindel could explain "whether the aggravation of the applicant's congenital os acromiale was temporary aggravation or was it a materially contributory factor in the applicant's disability and if so, how and why." In other words, the ALJ dismissed the application without prejudice so Dr. Grindel could explain his conclusions regarding causation as stated in his practitioner's report in light of the statements made in his August 16, 2008 treatment note.

The applicant appeals, asking the commission to award compensation for disability and medical expense. The respondent asserts that the commission does not have jurisdiction to review the ALJ's order. If the commission determines the ALJ does have jurisdiction, the respondent asks that the commission modify the ALJ's decision to dismiss the applicant's application with prejudice because she failed to establish her claim beyond a reasonable doubt.

a. Jurisdiction.

Wisconsin. Stat. § 102.18(3) limits the commission's jurisdiction to review of decisions awarding or denying compensation. In the past the commission has declined to accept jurisdiction to review "without prejudice" dismissal decisions. However, those are cases that have usually involved dismissals without prejudice before any evidence was taken or a hearing held.

That distinction is important in this case because of a recent court of appeals decision arising from another "without prejudice" dismissal in LaBeree v. LIRC, 2010 WI APP 148, __ Wis. 2d __, 793 N.W.2d 77. In LaBeree, the court of appeals held:

25 Bowman claims both the Commission and the circuit court lacked jurisdiction to hear LaBeree's petitions for review because the ALJ dismissed his claim without prejudice. We consider these matters together because they require interpretation of substantially similar statutory language. The interpretation and application of statutory language presents a question of law. See Brown v. LIRC, 2003 WI 41 11, 267 Wis. 2d 31, 671 N.W.2d 279.

26 Under WIS. STAT. § 102.18(3), a party may petition the commission for review of an examiner's decision "awarding of denying compensation." A party aggrieved by a Commission decision may, in turn, seek judicial review of an "order or award granting of denying compensation." WIS. STAT. § 102.23(1)(a). Bowman claims that neither the ALJ's nor the Commission's order, both of which dismissed LaBeree's claim without prejudice, denies compensation within the meaning of § § 102.18(3) and 102.23(1)(a). Citing Guerin v. LIRC, 121 Wis. 2d 183, 185-86, 359 N.W.2d 162 (Ct. App. 1984), Bowman argues the ALJ's order, adopted in its entirety by the Commission, merely defers a decision on the merits of LaBeree's claim.

27 Guerin appears to define an order "awarding or denying compensation" synonymously with an order reaching the merits of the applicant's claim. In Guerin, both a hearing examiner and the Commission rejected as premature a police officer's claim for special disability benefits because he had not yet retired. Id. At 184. Guerin petitioned for judicial review, but the circuit court concluded the commission's order was unreviewable. We held the circuit court lacked jurisdiction because the Commission's order did not grant or deny compensation: "The merits of the claim were not considered. Guerin was not prejudiced, as the merits may still be determined. Deferral is not synonymous with denial. The substance of the commission's action was to wait until the potential claim was ripened by Guerin's retirement." Id. At 185-86.

28 Although the administrative decisions in this case contemplated the possibility of future action by LaBeree, the dismissal was not procedural or rooted in standing doctrines like ripeness. Both the ALJ and the commission recognized that LaBeree has a viable worker's compensation claim, but found LaBeree presented insufficient evidence to substantiate it. Unlike the administration decisions in Guerin, the decision in this case followed a full evidentiary hearing and resolved LaBeree's claim on its merits. Accordingly, the decisions of the ALJ and the Commission did deny compensation within the meaning of WIS. STAT. § § 102.18(3) and 102.23(1)(a), respectively.

Applying the reasoning in LaBeree, the ALJ's decision in this case denied compensation, at least it denied the immediate payment of compensation, based on the evidence at the hearing, so the commission has jurisdiction to review.

b. Merits.

The next issue is whether the ALJ decided the case correctly. The commission concludes that he did.

In essence, ALJ Ezalarab has directed the applicant to produce additional evidence. As the record stands, the commission's lay reading of Dr. Grindel's opinion stated in his August 14, 2008 treatment note raises some question about the doctor's responses to the form practitioner's report. Under these circumstances, the ALJ reasonably withheld an order awarding compensation while seeking clarification from the doctor regarding the relationship between the applicant's work injury and her subsequent surgery and disability.

On the other hand, the commission also declines to dismiss the application with prejudice, as the respondent requests, based on a finding the applicant failed to prove her case beyond a legitimate doubt. First, the commission's policy is to accord lesser weight to those arguments raised in a responsive brief, as opposed to those raised in a timely petition or cross-petition. See Deborah Polakowski v. Clearview Nursing Home, WC claim no. 96028025 (LIRC, December 17, 1997). See also: Hazelton v. Menard's Inc., WC claim no. 2003-033056 (LIRC, February 14, 2007). Second, the more reasonable course in this case is to allow Dr. Grindel to explain his opinions rather than to assume they fatally conflict.

cc: Attorney Russell W. Devitt
Attorney James C. Ratzel

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