VANESSA DECORA, Applicant

NORTHLAND EVERGREENS INC, Employer

SOCIETY 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.

Dated and mailed
July 28, 2011
decorav.wsd :101:5  ND6  9.22; 10.2

BY THE COMMISSION:

/s/ Robert Glaser, Chairperson

/s/ Ann L. Crump, Commissioner

/s/ Laurie R. McCallum, Commissioner

The applicant was born in 1979. She seeks compensation for an injury to her wrist occurring in the late fall of 2007 while she was working for the employer, a company that makes Christmas wreaths. While working with wire to assemble a wreath, the applicant felt a popping sensation in her wrist. Specifically, she was pulling on a wire when she felt a pop and then felt a burning sensation going up her arm. The medical record in this case documents continuing treatment for wrist pain thereafter.

Both sides have offered expert medical opinion regarding the cause, nature, and extent of disability from the applicant's wrist condition. The applicant relies on the opinion of Douglas F. Hoffman, M.D., her treating orthopedist. The employer and its insurer (collectively, the respondent) rely on the expert medical opinion of their examiner, Michael Orth, M.D.

The ALJ credited Dr. Hoffman's opinion and found the applicant has sustained a work injury with an October 30, 2007 date of injury. He awarded temporary total disability from that date through the date of hearing, along with medical expenses. The respondent appeals, advancing arguments based on due process, causation, and failure to treat.

1. Due process.

Regarding due process, the respondent asserts that because the hearing application lists a November 1, 2007 date of injury, but the ALJ awarded benefits based on an October 30, 2007 date of injury, the respondent did not "reasonably know the charges or claims preferred against it" as required by Waste Management v. LIRC, 2008 WI App 50, 9, 308 Wis. 2d 763. On this point, the respondent points out that the court of appeals stated in Waste Management that knowing the facts that may give rise to a claim is not equivalent to knowing the charges or claims to be litigated. The respondent asserts that while there may have been facts supporting an October 30, 2007 date of injury, it did not know that was the claim being made against it.

However, in Waste Management, the court of appeals reversed the commission's decision, because the commission found liability based on a claim of occupational exposure, even though the parties had agreed beforehand that that issue would not be heard. Waste Management v. LIRC, 308 Wis. 2d 763, 10. In this case, by contrast, the applicant's claim has always been that she suffered a popping or snapping sensation in her wrist on her last day of work. She complained to her floor supervisor about such an injury and to the employer's vice president and personnel director. The medical notes indicate that she reported such an injury to her doctors on October 31, 2007. Her hearing application describes the injury as "I was using wire to assemble wreaths and felt a popping."

It may be that the applicant reported the injury to the employer's vice president on November 2, 2007, and told her that it occurred on November 1, but this does not amount to a denial of due process. The respondent knew the claim against it was for a wrist injury occurring with a snapping or popping sensation on her last day of work around the end of October or beginning of November 2007. Due process has not been denied by the ALJ's decision in this case.

b. Causation.

Next, the respondent asserts that Dr. Orth's opinion on causation is more credible than Dr. Hoffman's opinion. On this point, the respondent's attorney asserts that the applicant's initial complaints were in the snuffbox region of her wrist and that no tenderness is reported in the TFCC region or the DRUJ region where the MRI showed a pathology. Because the initial complaints of tenderness were not in the same region as the pathology shown in the MRI, the respondent asserts,
Dr. Hoffman's medical opinion is incredible.

However, Dr. Hoffman himself noted the symptoms had been what he described as being migratory. Further, the applicant has consistently reported a wrist injury, and it does not seem unreasonable that a traumatic injury with swelling would cause a worker to report symptoms and tenderness in different areas of the wrist as the swelling diminished. Both the initial symptoms and the MRI pathology appear to be in the vicinity of the ulnar carpal joint--the base of the wrist. Further, while Dr. Orth took exception with Dr. Hoffman's belief that the effusion shown in the MRI indicated a recent traumatic injury, he did not--as far as the commission can tell--suggest that Dr. Hoffman's opinion was less credible due to the migratory nature of the symptoms.

The respondent also asserts that Dr. Hoffman's opinion is less credible because he noted on June 4, 2008, the applicant's injury was consistent with repetitive use while assembly wreaths. The respondent suggested this is inconsistent with the applicant's claim of a traumatic injury. It goes on to suggest that Dr. Hoffman inappropriately changed to an occupational disease theory of liability, citing Jos. Schlitz Brewing Co. v. DILHR, 67 Wis. 2d 185, 189-90 (1975).

However, Jos. Schlitz does not apply in this case. There, the applicant died as a result of a heart attack at work. The employer's widow asserted the applicant had died from the carbon dioxide intoxication, not a heart attack. The ALJ found that theory was not supported by the evidence. The commission then reversed the ALJ and found the applicant had died due to a work-related heart attack caused by carbon dioxide inhalation. In other words, in Jos. Schlitz, the commission substituted a different theory of liability--which the court characterized as changing horses in midstream--that had not been litigated by the applicant.

Here, the commission reads Dr. Hoffman's treatment notes and medical reports as establishing that the applicant sustained a traumatic injury with the snapping or popping sensation in her wrist. While the doctor refers to repetitive use of her wrist, he does not suggest that that work exposure gradually caused disability over an appreciable period of time. Rather, his opinion is based on the dramatic onset of pain with a popping or snapping sensation in her wrist, as she testified and as she stated in her hearing application. Dr. Hoffman's reference to the applicant's repetitive work activity does not amount to offering an opinion about an entirely different injury than the one sustained with the popping or snapping sensation on October 30.

Finally, the applicant testified credibly (or so the ALJ who heard her testify believed) that she sustained the sudden onset of pain with a popping or snapping sensation in her wrist on October 30. This testimony is borne out by the very earliest medical notes in the LCO Community Clinic treatment records of October 31, by the testimony of her floor supervisor, Eva, and even by what she told the employer's vice president and human resources officer, Ms. Neff, as early as November 2, 2007. The commission sees little in this record to question that the popping or snapping injury occurred at work. Like the ALJ, the commission does not credit Dr. Orth's opinion that the work the applicant did lacked sufficient "force, magnitude, duration, or frequency" to cause her injury.

c. Failure to treat.

The respondent also asserts the applicant's disability claim should be denied due to her failure to treat. Specifically, the applicant's treating doctors, particularly Dr. Hoffman, note that the applicant missed both physical therapy appointments and medical treatment appointments.

The applicant contends she missed these appointments because of transportation problems and that the transportation problems were exacerbated by the fact that the respondent denied her claim and was not paying her medical expenses. Indeed, because the respondent denied her claim and refused to pay her medical treatment expenses those expenses have gone unpaid to the date of hearing. The insurer's letters denying the claim are at Exhibit J.

As the respondent points out, the case law requires that generally an injured worker be submitting to treatment in order to be regarded as being in a healing period. Regarding a "healing period," the supreme court has held:

The healing period is understood to mean ... the period prior to the time when the condition becomes stationary. This requires the postponement of the fixing of the permanent partial disability to the time that it becomes apparent that the leg will get no better or worse because of the injury. The healing period is expected to be temporary, during it the employee is submitting to treatment, is convalescing, still suffering from his injury, and unable to work because of the accident. The interval may continue until the employee is restored so far as the permanent character of his injuries will permit.

Knobbe v. Industrial Comm., 208 Wis. 185, 190, 242 N.W. 501, 503 (1932).

Citing that definition, the supreme court in Larsen Co. v. Industrial Commission, 9 Wis. 2d 386, 392 (1960) added:

An employee's disability is no longer temporary when the point is reached that there has occurred all of the improvement that is likely to occur as a result of treatment and convalescence. At such point the commission is enabled to make a determination of the percentage of permanent partial disability...

However, the commission previously addressed the situation where, as here, an employer refuses to pay for treatment that would help the applicant recover in Carole Lee v. Famous Fixtures, WC claim no. 96000857 (LIRC July 2, 1997). In that case, the commission held that an employer may not refuse to pay for treatment for a compensable work injury, and then point to a worker's unchanging condition after that refusal as an endpoint of healing. See also, LeBlanc v. Laidlaw Transit, WC claim no. 2005-043498 (LIRC November 6, 2008).

Similarly, in Klein Industrial Salvage v. ILHR Dept., 80 Wis. 2d 457, 461-62 (1977), a case involving a claimed unreasonable refusal to treat under Wis. Stat.
§ 102.42(7), the court stated:

In prior cases we have said that a claimant cannot be said to have unreasonably refused treatment if none was offered by the employer. [citations omitted] To deny compensation to a worker who could not pay the cost of medical treatment personally or who could not find someone to pay the cost would be inconsistent with the statute's purpose.

In other words, a worker's failure to seek treatment at his own or the public's expense cannot be viewed as unreasonable refusal or neglect to submit to treatment under § 102.42(7). Id. In this case, moreover, the commission infers from the record that the applicant does not have substantial personal financial resources and in fact had difficulty keeping appointments because of transportation problems.

cc: Attorney Curtiss N. Lein
Attorney Steve A. Cotton

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