ROBERT A LIEGEL, Applicant
CITY OF BARABOO, Employer
CITIES & VILLAGES MUTUAL INS CO, Insurer
In August 2008, the applicant filed a hearing application related to an April 16, 2007 injury to the right upper extremity. An administrative law judge (ALJ) for the Worker's Compensation Division of the Department of Workforce Development heard the matter on September 1, 2010.
Prior to the hearing, the employer and its insurer (collectively, the respondent) conceded jurisdictional facts, an average weekly wage at the statutory maximum, and a compensable injury on April 16, 2007. The respondent also conceded permanent partial disability at 30 percent compared to loss of the hand at the wrist. As explained below, while the parties agreed at the hearing that the respondent had paid $31,440 in permanent partial disability on that concession, the respondent asserted in its brief on appeal that it actually paid a slightly lesser amount of $30,741.28.
At issue before the ALJ, and now before the commission, was the extent of permanent disability beyond that conceded. On September 22, 2010, the ALJ issued his decision in the applicant's favor. The respondent 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:
The applicant was born in 1966. He is a construction worker, but sustained a concededly compensable injury on April 16, 2007, while working as a volunteer firefighter.(1) The injury occurred when a truck tire that the applicant was filling with air exploded. At issue now is the extent of permanent disability to his right wrist.
The initial treatment notes are summarized in the report of the respondent's medical examiner at exhibit 4. On April 16, 2007, the date of injury, the applicant saw Dr. Lacharite who recorded a history of "[w]hile filling a truck tire the tire exploded." The doctor opined the applicant sustained "blast injuries to the face, neck, and chest as well as the right forearm." X-rays taken that day showed a "displaced comminuted fracture of the proximal diaphysis of the radius."
Two days later, on April 18, 2007, the applicant underwent a hand surgery performed by Robert H. Ablove. Specifically, Dr. Ablove performed an open reduction and internal fixation of the proximal radius fracture.
On April 26, 2007, the applicant returned to Dr. Ablove who noted: "Post-operatively, he was noted to have a radial nerve palsy." The doctor told the applicant it could take up to six months for the radial nerve to start recovering. He kept the applicant off work and referred the applicant to occupational therapy.
On June 4, 2007, the applicant returned to Dr. Ablove who again noted the "radial nerve palsy." The doctor noted that the applicant had function of the extensor carpi radialis. However, the doctor noted, "No ECU or digital extensor function." The applicant told the doctor he had had no improvement in his nerve function and that he felt his small and ring fingers were quite dysfunctional and only seemed to "get in the way." The applicant also complained of right wrist pain and a sensation that the wrist was swollen. Again, the doctor explained that it could take six months for his nerve to recover. The applicant was given a release to left-handed work on this date.
The applicant returned to Dr. Ablove on July 16, 2007, telling the doctor he had been unable to return to work because there was no light duty available for him as a construction worker working one handed. He also continued to have no "[n]o ECU or digital extensor function." The doctor modified the applicant's work restrictions to permit left-handed work with a ten pound lifting restriction on the use of the right arm. He also told the applicant he wanted him to undergo EMG and nerve conduction testing.
Accordingly, the applicant underwent an EMG/nerve conduction study on July 26, 2007. According to Dr. Ablove's August 20, 2007 note, the nerve testing showed:
...right radial motor neuropathy/posterior interosseous neuropathy axonal and severe. The injury was noted to be distal to the takeoff of the extensor carpi radialis nerve branch and proximal to the takeoff of the extensor carpi ulnaris nerve branch. There was active denervation of the right ECU, EDC, EIP.
Dr. Ablove was still optimistic that the applicant's nerve would recover. However, he told the applicant that if there was no sign of recovery within six months of the date of injury, the doctor would consider a tendon transfer. He was given a note releasing him to work with a 20 pound lifting restriction on his right hand.
When the applicant returned to the doctor on October 22, 2007 - this would be six months post-injury - he told the doctor he had been working in light duty clerical work with a 20 pound lifting restriction but that he had no improvement on his extensor function. The doctor wanted to repeat the EMG/nerve conduction study and this was done on November 1, 2007. According to Dr. Ablove's note from that day, the EMG study showed a "right posterior interosseous neuropathy, active and severe, with no evidence for nerve continuity beyond the supinator muscle." The doctor's assessment was:
41-year-old right-hand dominant male who is now 6 months status post right open reduction internal fixation of radial shaft fracture on April 18, 2007. Postoperatively, he is noted to have radial nerve palsy, which is not showing any evidence of improvement at this time.
Dr. Ablove's plan was a tendon transfer for radial nerve injury.
The applicant in fact underwent the surgery, described as an "exploration of posterior osseous nerve, removal of plate, and tendon transfer", on December 21, 2007. During the surgery, the doctor noted that the main trunk of the posterior interosseous nerve appeared "not to be in continuity distally." According to the doctor's operative note, the exact operation was an:
Exploration of posterior osseous nerve, removal of plate, and tendon transfers middle FDS to extensor digitorum communis and ring FDS to extensor pollicis longus with re-routing of extensor pollicis longus and also extensor carpi radialis longus to extensor carpi radialis brevis partial transfer.
On December 26, 2007, or five days post-surgery, Dr. Ablove reported that the applicant had been doing well since his surgery, and denied any numbness, tingling or weakness. He told the doctor that he had had pain in the first two days since surgery but that that had calmed down. He referred the applicant to an occupational therapist.
On examination on January 7, 2008, the doctor reported that the applicant reported his pain was dramatically improved. The doctor also noted that the applicant had overall good hand position, that sensibility was intact in the median radial and ulnar nerve distribution, and that he had two-point discrimination at four millimeters in all five fingers.
The applicant returned to Dr. Ablove on February 11, 2008 when the doctor noted reports of continued functional improvement with occupational therapy. The applicant told the doctor he had occasional throbbing but that this was not constant. The doctor reported the applicant was doing well and that he should continue to work on strengthening and endurance of his right upper arm.
On March 13, 2008, the applicant returned to Dr. Ablove, who noted that the applicant's occupational therapist had done range of motion and grip strength testing. While the applicant had normal sensation to light touch, it does appear that there was reduced range of motion in the right wrist and fingers and the applicant, who is right hand dominant, had a grip strength of 110 pounds in his left hand compared to 23 pounds in his injured right hand.
Dr. Ablove did, however, note that the applicant continued to show signs of progress though he noted that since the transfer, the applicant was unable to make a full fist. He also anticipated that the applicant would be able to increase his grip strength, and he referred the applicant for a functional capacity evaluation before releasing him to work with permanent restrictions.
The report of the functional capacity evaluation is at exhibit 3. The report states that the applicant had poor speed scores on dexterity tests, but the overall hand and finger movement was noted to be within normal limits. The therapist performing the test described the applicant's major area of dysfunction as "[right] hand gripping including use of handles on box." Her report shows a maximum left hand grip strength of 33 pounds in the right hand compared with 110 pounds in the left.
Thereafter, in March of 2008, Dr. Ablove released the applicant with permanent restrictions allowing him to do heavy work. In April 2008, the applicant was able to operate a forklift as he had previously. When he saw Dr. Ablove in May 2008, the applicant reported some difficulty in picking up concrete blocks and grasping objects with his right hand. The doctor also noted diminished grip strength at 50 kilograms on the right and 30 on the left (the commission infers these are reversed), though he anticipated that the applicant's grip strength would continue to improve as his extensor tendon stretched out over time.
When the applicant returned to Dr. Ablove on October 16, 2008, the doctor noted grip strength of 48 kilograms on the left and 22 kilograms on the right. He felt, however, that the applicant had not yet reached end stage healing and that there was continued room for improvement.
In a medical report dated November 18, 2008 (exhibit 5), Dr. Ablove opined the applicant had permanent partial disability at 30% compared to loss of the right hand. However, when Dr. Ablove saw the applicant again on April 20, 2009, the doctor reported:
Basically he was injured by an exploding tire and sustained a fractured proximal 3rd of his right radius. He had heterotopic ossification and developed posterior osseous nerve palsy postoperatively and ultimately was treated with tendon transfers of the FDS to EDC, EPL as well as ECRL to ECRB transfer. My initial assessment of his disability was 30%. He really is having a lot of problems. He has very little work tolerance. He is working full duty but mostly operating levers. When he has to do any appreciable amount of lifting, he had difficulty and fatigues greatly. Re-reviewing the Wisconsin State Guidelines, particularly page 84, referring to radial nerve paralysis with complete loss to extension, wrist and fingers, is stated as a 45%-55% loss at the wrist. While he had had some improvement from the tendon transfers to the point where he is almost able to fully flex his fingers to the point where the tips touch the mid palmar line, his grip strength is 22kg versus 50 on the left. I think that I underestimated his overall disability, even looking at page 6 of his independent medical evaluation dated March 19, 2009, it states that he is eligible for 45%-55% loss. I do not think that his improvement after surgery was really enough to justify what in much respect is the relatively low rating that I gave. So I would actually estimate him to be closer to the 55% end of disability regarding his permanency.
Exhibits A and D.
Dr. Ablove has completed a practitioner's report on form WKC-16-B dated August 12, 2010 (exhibit C), to which he attached the April 20, 2009 treatment note quoted above. In completing the form practitioner's report, Dr. Ablove "estimate[d] the percentage of disability to the member ... involved" at 55 percent at the right wrist. Regarding the elements that constituted permanent disability, he referred the reader again to his April 20, 2009 treatment note.
The employer, for its part, retained Kevin J. Kulwicki, M.D., whose initial report is at exhibit 4, as its medical examiner. Dr. Kulwicki examined the applicant on February 23, 2009, at which time the applicant was complaining of stiffness in the wrist, abnormal dexterity, dropping things, and that his small finger caught on things because it stuck out. The applicant also complained of stiffness and pain in his long finger.
On physical examination, the doctor noted evidence of extrinsic hand tightness, mild diffuse tenderness about the carpus, incomplete small finger extension, but light sensation intact in the distribution of the radial, medial, and ulnar nerve. He noted too, that the motor examination was diffusely weak with a 4/5 strength in the distribution of the anterior interosseous, radial, median, and ulnar nerve.
In his discussion portion, Dr. Kulwicki indicated that the applicant's treatment was appropriate and that while the applicant had some improvement in function after his surgeries, he also developed extrinsic hand stiffness aggravated by wrist flexion. The doctor explained that there was a tethering and scarring effect after the tendon transfers. Regarding disability, Dr. Kulwicki reported:
I concur with Dr. Ablove's estimation of permanent partial disability of 30 percent at the wrist. Per the State of Wisconsin Pamphlet on How to Evaluate a Permanent Disability, complete motor loss of the posterior interosseous nerve at the wrist is eligible for 45 to 55 percent. This is the case in this patient. However, he did undergo high quality surgical treatment by a hand surgeon with tendon transfers. This did give him some function of that hand back. In addition, he does have some stiffness of the hand. I would incorporate that into the previously rated 30 percent.
Dr. Kulwicki added that the applicant should have a 40-pound lifting restriction and had reached the end of healing as of February 23, 2009.
Dr. Kulwicki revisited his report after Dr. Ablove increased his permanent disability to 45 to 55 percent. Accordingly, in a supplemental report at exhibit 6 dated June 8, 2009, Dr. Kulwicki stated:
As of my Independent Medical Examination, dated March 19, 2009, the State of Wisconsin Guidelines recommend 45 to 55 percent permanent partial disability for complete motor loss of the posterior interosseous nerve at the wrist. However, in this case, Mr. Liegel has received excellent surgical care in the form of tendon transfers to help improve his function. It does appear that he has had some increase in function, rather than the physical presentation of a full posterior interosseous nerve palsy. This is documented in my physical exam, dated March 19, 2009, as well as in Dr. Ablove's most recent notes. In this case, I still believe that 30 percent is a reasonable permanent partial disability rating, given his current level of function. No significant changes in the physical examination were noted, per Dr. Ablove's most recent note.
The medical experts refer to the department's publication "How to Evaluate Permanent Disability," which in turn incorporates the minimum percentages of loss of use set out in Wis. Admin. Code § § DWD 80.32(9) and (10). These state a minimum 45 to 55 percent disability for complete loss of extension of the wrist and fingers, a 65 to 75 percent rating for a total median sensory loss of the hand, and a 25 percent total ulnar sensory loss to the hand. They also give a minimum rating of 30 percent for ankylosis--or a restriction on the ability to move the wrist(2)--at 30 degrees of dorsiflexion, with additional ratings for a loss of dorsiflexion, palmarflexion, inversion and eversion. Under the code, "findings of additional disabling elements shall result in an estimate higher than the minimum." Wis. Admin. Code § DWD 80.32(1).
Dr. Kulwicki opines that the applicant would have had a 45 to 55 percent permanent partial disability at the wrist had the surgery not been done, but because the tendon transfer surgery was done, and it was successful, he opined the applicant's loss should be 30 percent. Dr. Ablove noted that the 45 to 55 percent rating in the administrative code refers to a radial nerve paralysis with complete loss of extension at the wrist and fingers. However, he also notes that the applicant additionally had a loss of grip strength, the inability to fully flex his fingers, difficulty lifting, and fatigue at work. In his practitioner's report, he ultimately rated permanent partial disability at 55 percent.
The applicant has had two surgeries and a long and difficult period of recovery. He has significant lost grip strength, and cannot make a full fist. He credibly demonstrated loss of function at the hearing before the ALJ. He is back to work but fatigues easily. The respondent's own doctor documents "no posterior interosseous nerve function" in addition to tenderness, hand tightness, and loss of strength.
Dr. Ablove has credibly explained why he increased his original 30 percent disability estimate to 55 percent. While both doctors refer to the percentages set out in the administrative code, those, again, are minimums and the code contemplates higher estimates with additional disabling elements. In cases such as this, where the applicant's condition does not precisely match a single sensory loss or loss of motion set out in the code and also has additional disabling elements, it is reasonable for a doctor to reach his or her own estimate after giving consideration to the minimums set out in the code. After weighing the medical evidence in light of Wis. Stat. § 102.18(1)(d), the commission, like the ALJ, finds that the applicant sustained permanent partial disability at 50 percent compared to amputation at the wrist.
The applicant is therefore entitled to 200 weeks of permanent partial disability at the weekly rate of $262, the statutory maximum for injuries in 2007, totaling $52,400. As of August 5, 2011, 167 weeks totaling $43,754 has accrued, 33 weeks totaling $8,646 remains unaccrued.
The applicant agreed to the direct payment of an attorney fee, set under Wis. Stat. § 102.26 at 20 percent of the amount awarded beyond that conceded. As set out above, the employer previously conceded permanent partial disability at
30 percent at the wrist, which would total $31,440, leaving an award of
20 percent, or $20,960, in permanent partial disability beyond that conceded. The future value of the fee, thus, is $4,192 (0.20 times $20,960). As of August 5, 2010, however, only $2,462.80 in fee on the first 167 weeks of the permanent partial disability award has accrued; the $1,729.20 in fee on the final 33 weeks has not accrued and is so is subject to an interest credit of $27.95 to account for its advance payment, yielding a present value of the total fee of $4,164.05. That amount, plus costs of $121.40 shall be paid to the applicant within 30 days.
The amount currently due the applicant as of August 5, 2011, is $10,428.52, which equals the total amount currently accrued ($43,754), less the amount the employer has paid on its concession of 30 percent ($30,741.28(3)), less the accrued fee ($2,462.80), and less costs ($121.40).
The amount remaining to be paid to the applicant as it accrues after August 5, 2011, is $6,916.80, which equals the unaccrued award ($8,646) less the fee thereon ($1,729.20). That amount shall be paid to the applicant in monthly installments of $1,135.33 beginning on September 5, 2011.
The applicant has required two surgeries to treat his work injury, and Dr. Ablove stated the need for future treatment was "unknown." (See exhibit C.) Accordingly, this order shall be left interlocutory to permit additional awards of disability and medical expense as may arise in the future.
Finally, at the hearing, the ALJ stated that the portion of the hearing application dealing with the applicant's disfigurement claim was dismissed without prejudice. (Transcript, page 54.) For the sake of completeness, the commission shall likewise so order.
NOW, THEREFORE, the Labor and Industry Review Commission makes this
The findings and order of the administrative law judge are modified to conform to the foregoing and, as modified, are affirmed.
Within thirty days, the employer and its insurer shall pay all of the following:
1. To the applicant, Robert A. Liegel, Ten thousand four hundred
twenty-eight dollars and fifty-two cents ($10,428.52) in disability compensation.
2. To the applicant's attorney, Charles M. Soule, the sum of
Four thousand one hundred sixty-four dollars and five cents ($4,164.05) in fees and One hundred twenty-one dollars and forty cents ($121.40) in costs.
Beginning on September 5, 2011, and continuing on the fifth day of each month thereafter, the employer and its insurer shall pay the applicant One thousand one hundred thirty-five dollars and thirty-three cents ($1,135.33) per month until the additional amount of Six thousand nine hundred sixteen dollars and eighty cents ($6,916.80) has been paid.
Jurisdiction is retained for further orders and awards as are warranted and consistent with this decision.
The portion of the hearing application claiming compensation for disfigurement is dismissed without prejudice.
Dated and mailed
July 28, 2011
liegelr.wrr:101:5 ND6 6.19; 9.33
BY THE COMMISSION:
/s/ Robert Glaser, Chairperson
/s/ Ann L. Crump, Commissioner
/s/ Laurie R. McCallum, Commissioner
The respondent's brief suggests that it is uncertain where Dr. Ablove's rating falls since he says that it is "closer to the 55% end of disability." However, the doctor specifically estimated disability at 55 percent in his subsequent practitioner's report at exhibit C. In any event, the commission, like the ALJ, awarded permanent partial disability at 50 percent, not 55 percent, rendering moot any uncertainty as to the meaning of "closer to the 55% end of disability."
The respondent in its brief seems to criticize Dr. Ablove's use of the word "estimate." However, the term "estimate" is used in Wis. Stat. § 102.18(1)(d) as well Wis. Admin. Code § DWD 80.32. Use of the term "estimate" in this context does not connote a "guess" or something less than a reasonable degree of medical probability.
The respondent also suggests the ALJ should not have issued an interlocutory order. As noted above, Dr. Ablove stated the need for future treatment was "unknown." The respondent therefore contends that the ALJ's reservation of jurisdiction is speculative.
Interlocutory orders are authorized by Wis. Stat. § 102.18(1)(b) which states in part:
". . . Pending the final determination of any controversy before it, the department may in its discretion after any hearing make interlocutory findings, orders and awards which may be enforced in the same manner as final awards."
In general, an interlocutory order--as opposed to a final order--is appropriate to permit future disability and medical expense awards when it may not definitely be determined that the injured worker will not sustain additional periods of disability with respect to the injury.
Larsen Co. v. Industrial Commission, 9 Wis. 2d 386,
392-93 (1956), Vernon County v. ILHR Dept., 60 Wis. 2d 736, 739-41 (1973). The level of evidentiary proof to support an exercise of discretion to reserve jurisdiction under Wis. Stat. § 102.18(1)(b) is not great.
Lisney v. LIRC, 171 Wis. 2d 499, 515 (1992). Indeed, Wis. Stat. § 102.18(1)(b) is intended to give full scope to agency expertise in reserving jurisdiction where the effect of injury may be uncertain or the medical evidence is considered inadequate. DWD,
Worker's Compensation Act of Wisconsin, with amendments to December 2008, note 106 (WKC-1-P
(R. 02/2009)).
cc:
Attorney Charles Soule
Attorney William W. Ehrke
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