KEVIN SUING, Applicant
MIDWEST AIRLINES INC, Employer
INSURANCE COMPANY OF STATE OF PA, 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, except that it makes the following modifications:
1. Delete the last sentence of the first paragraph on page 5 of the ALJ's decision and substitute:
"Applicant is entitled to worker's compensation benefits, including but not limited to 10% permanent partial disability (PPD) at the left wrist, and the claimed reasonable and necessary medical expense after January 1, 2010. At the weekly rate of $242 (the statutory maximum for injuries in 2005) for 40 weeks, the total amount due in permanent partial disability compensation is $9,680."
2. Delete the first paragraph of the ALJ's Interlocutory Order and substitute:
"Within 30 days, the respondent and insurer shall pay to the applicant, Kevin Suing, Seven thousand Seven hundred forty-four dollars and no cents ($7,744.00) as compensation for permanent partial disability, and to the applicant's attorney, Robert A. Levine, One thousand nine hundred thirty-six dollars and no cents ($1,936.00) in fees."
The findings and order of the administrative law judge, as modified, are affirmed.
Dated and mailed
June 25, 2012
suingke . wmd : 101 : 9 ND6 6.19
BY THE COMMISSION:
/s/ Robert Glaser, Chairperson
Ann L. Crump, Commissioner
/s/ Laurie R. McCallum, Commissioner
The applicant struck his left elbow at work on August 31, 2005. In 2006, the applicant underwent a left olecranon bursectomy. In 2009, he underwent a left ulnar nerve transposition, flexor pronator lengthening, and scar release at the inner elbow.
The applicant currently has symptoms of left hand numbness. Although the injury and surgery were at the elbow, his surgeon, Greg P. Watchmaker, M.D., estimated permanent partial disability at 10 percent at the wrist. Exhibit A. Dr. Watchmaker's estimate is consistent with the rule that disability is assessed at the part of the body that is disabled, which may not always be the same part of the body as that injured.(1)
The main issue before the ALJ was whether the second surgery was made necessary by the work injury. By order dated March 22, 2012, the ALJ found it was, and awarded permanent partial disability at 10 percent at the elbow, or 45 weeks, at the weekly rate of $282, totaling $12,690.
On March 26, 2012, the respondent wrote to the ALJ and asked him to modify his award to pay 10 percent at the wrist, or 40 weeks, using the weekly rate of $242 (the statutory maximum PPD rate for injuries sustained in 2005), totaling $9,680, which was the award sought by the applicant in his post-hearing brief. The respondent's letter to the ALJ has been treated as a petition for commission review.
To date, the applicant has not responded to the respondent's letter. The modification sought by the respondent is appropriate and correct. The commission modified the ALJ's decision accordingly.
cc:
Attorney Robert A. Levine
Attorney Michael C. Frohman
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