STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION
P O BOX 8126, MADISON, WI 53708-8126 (608/266-9850)

CARLA J LEAK, Applicant

HOLTS ON GRAND, Employer

JOHNS PIZZERIA, Employer

SOCIETY INS CO, Insurer

EMC COMPANIES, Insurer

WORKER'S COMPENSATION DECISION
Claim Nos. 92009376, 94036088, 97000782

The employer, Holt's On Grand and Society Insurance, submitted a petition for commission review alleging error in the administrative law judge's Findings and Interlocutory Order dated January 22, 1997. All of the parties submitted briefs in this matter. At issue is whether the applicant sustained a bilateral carpal tunnel syndrome based on a last day of work of February 23, 1992 arising out of her employment, the nature and extent of disability, and liability for medical expenses.

The commission has carefully reviewed the entire record in this matter and after consultation with the administrative law judge regarding credibility and demeanor of the witnesses, hereby affirms in part and modifies in part the Findings and Interlocutory Order of the administrative law judge. The commission makes the following:

MODIFIED FINDINGS OF FACT

1. Delete the first paragraph which begins on page 2 of the administrative law judge's Findings and ends on page 3 and substitute therefor:

"Although various dates have been suggested as the date of injury based on the applicant's employment for several employers, the date of injury is determined to be January 17, 1992, when the applicant first lost time from work at John's Pizzeria due to her injury. The applicant first reported the onset of her wrist problems while working for John's Pizzeria in 1988 or 1989 and she first received medical treatment in June 1991 while working for John's Pizzeria. Dr. Gnadt, the applicant's treating physician, indicated in a WC-16-B that the applicant suffered a work injury due to the repetitive use of her hands initially as a cook stirring, handling plates, frying and flipping pancakes and later as a waitress handling food orders and he diagnosed her with bilateral carpal tunnel syndrome. Dr. Gnadt's assessment that the applicant's work as a waitress for John's Pizzeria was a material contributory causative factor in the onset of her symptoms is credited and therefore the applicant sustained an occupational disease causing an injury to her wrists in the nature of bilateral carpal tunnel syndrome based on a last day of work of January 17, 1992, arising out of her employment while performing services incidental to her employment with John's Pizzeria."

2. Also delete the administrative law judge's Interlocutory Order and substitute therefor:

Now, therefore this

INTERLOCUTORY ORDER

The Findings and Interlocutory Order of the administrative law judge are affirmed in part and modified in part in accordance with the above findings. Within thirty days from date the employer John's Pizzeria shall pay to the applicant the sum of Two thousand twenty-eight dollars and twenty-seven cents ($2,028.27) as compensation and the sum of Three hundred eighty dollars and thirty cents ($380.30) as reimbursement for prescription medical expense and the sum of Five hundred twenty- four dollars and sixty-four cents ($524.64) as reimbursement for mileage travel expense to obtain treatment; To Jerome Hierseman, the applicant's attorney, the sum of Five hundred sixty-two dollars and eighty cents ($562.80) as attorney fees and the sum of Two hundred twenty-two dollars and ninety-three cents ($222.93) as reimbursement for costs; to WEA Insurance Group the sum of Sixteen thousand eight hundred twenty-nine dollars and seven cents ($16,829.07) as reimbursement for medical expenses; that jurisdiction is reserved for such further findings and order as may be warranted. That the application is hereby dismissed as to the employer Holt's on Grand and Society Insurance Company.

Dated and mailed: December 17, 1997
leakcar.wmd : 175 : 8 ND § 3.4

Pamela I. Anderson, Chairman

David B. Falstad, Commissioner

James A. Rutkowski, Commissioner

MEMORANDUM OPINION

The employer, Holt's on Grand, contends in its petition for commission review that the administrative law judge erred in determining that the applicant suffered an occupational disease type work injury with a date of injury of March 16, 1991. Holt's on Grand notes that although Dr. Porter offered the opinion that the applicant's activities at John's Pizzeria did not cause the applicant to develop bilateral carpal tunnel entrapment there was nothing in the testimony at the time of the hearing that the applicant's entire employment with John's Pizzeria was part-time and that the applicant noted that she had the onset of her symptoms in the summer of 1989 while working for John's Pizzeria. The commission agrees.

The applicant worked for a number of employers from July 1988 through January 1992 when she first missed work due to her wrist problems. The applicant testified that she began working for John's Pizzeria in July 1988 and worked until September 1989. The applicant then went to work as a cook for Dari Haus in November 1989 and worked until September 1990 at which time the employer was taken over by Holt's On Grand and she worked for the new employer from September 1990 until October 1, 1990. The applicant then went to work for Burger King on October 10, 1990 and worked until November 1990. The applicant then found a job with the Port Washington School District and worked from November 1990 until January 1991. The applicant then went back to work at Holt's On Grand beginning in January 1991 and subsequently took a second job on a part-time basis again with John's Pizzeria in February 1991 and subsequently quit Holt's On Grand in March 1991.

The applicant testified that she began experiencing wrist pain in 1988 or 1989 and that she first received medical treatment in June 1991. The applicant continued to work for John's Pizzeria on a part-time basis after last working for Holt's On Grand and continued to work until she had her first lost time from work on January 17, 1992. The applicant underwent right carpal tunnel release on February 27, 1992 and left carpal tunnel release on April 2, 1992.

The applicant testified that at John's Pizzeria she had to stock the bar and take out food and write down orders and then she worked at the Dari Haus as a cook. The applicant testified that she would flip burgers, cook steaks, make salads and pull out and put plates on the table. The applicant testified that at Washington School District she worked as a custodian holding mops, and scrubbing floors and then she went back to restaurant work.

The applicant testified that she began wearing a brace after she had the first onset of wrist or carpal tunnel symptoms in 1988 or 1989 but she did not get medical treatment. The applicant testified that she wore the brace while she was working at John's Pizzeria but that the pain continued. The applicant testified that she wore a brace on her left hand and that was the only problem then, but the other hand started hurting while working for the Port Washington School District.

The applicant testified that her first medical treatment was on June 10, 1991 with Dr. Gnadt. The applicant continued to receive treatment but she first lost time from work on January 17, 1992 when she was in a great deal of pain while working at John's Pizzeria. The applicant testified that she worked through January 24, 1992 and then had ten days off. The applicant testified that she quit working at Holt's On Grand in March of 1991 due to the pain from working both jobs at the same time.

The applicant testified that she was cooking, deep frying and flipping at the Dari Haus as well as Holt's On Grand which was the subsequent owner. The applicant testified that she left Holt's On Grand on March 16, 1991 due to pain in her wrist. The applicant also testified that at John's Pizzeria she waitressed and took the orders and made up food orders and filled up the bar with beer and soda and that about 75 percent of her time was spent waitressing.

The applicant also testified that her wrist problems started while she was working at John's Pizzeria and that later in 1991 she first saw a doctor when she was working for John's Pizzeria and that her first lost time was while she was working for that employer. There was also testimony from Ms. Stoffel, the manager of John's Pizzeria, who testified that the applicant told her that she was injured at Holt's On Grand. Ms. Stoffel testified that when the applicant returned to work for John's Pizzeria in February of 1991, she said the work was too hard at Holt's On Grand and that was why she was returning to work at John's Pizzeria. Ms. Stoffel testified that there was no injury reported to John's Pizzeria by the applicant but that she was aware that the applicant was missing work for problems with her wrists later on.

The commission consulted with the administrative law judge concerning the credibility and demeanor of the witnesses. The administrative law judge indicated that he found the applicant to be forthright and honest in her testimony of the nature and onset of her wrist problems as well as her ongoing problems. Upon review of the evidence, the commission has found nothing to warrant overturning the administrative law judge's credibility assessment. However, the commission has reached a different conclusion as to the appropriate date of injury. The commission finds that the evidence supports a date of injury of January 17, 1992, when the applicant first lost time from John's Pizzeria. Under Wis. Stats. § 102.01 (2g) 2, in the case of an occupational disease, the date of injury means the date of disability or if that date occurs after the suscation of all employment that contributed to the disability, the last day of work for the last employer that caused the disability. In this case, the date of disability was January 17, 1992, when the applicant first lost time while working for the employer.

The evidence indicates that the applicant's work for John's Pizzeria was a material contributing causative factor in the onset of the applicant's disability. Dr. Gnadt indicated in his WC-16-B dated March 11, 1992 that the applicant's work injury was due to repetitive use of her hands initially as a cook and then later as a waitress handling food orders. Dr. Gnadt again indicated in a WC-16-B dated March 29, 1993 that the applicant suffered a work injury due to repetitive use of her hands initially as a cook, stirring, handling plates, frying and flipping pancakes and later as a waitress handling food orders and he diagnosed her with bilateral carpal tunnel syndrome. In a subsequent WC-16-B dated January 18, 1995 Dr. Gnadt again reiterated that the applicant's injury was due to repetitive use of her hands as a cook and a waitress but also pointed to excessive overhead reaching for case supplies and cardboard for pizzas. Therefore, Dr. Gnadt's assessment clearly includes the applicant's work activities as a waitress for John's Pizzeria as material contributory causative factor in the onset of her carpal tunnel syndrome. Given the fact that the applicant first noted the onset of her wrist problems while working for John's Pizzeria in 1988 or 1989 and given the fact that the applicant continued to report wrist problems while working for John's Pizzeria subsequent to March 1991 and that she first sought treatment in June 1991 as well as when she first lost time for work in January 1992, the commission finds that the appropriate date of injury was with John's Pizzeria on January 17, 1992.

The commission did not credit the assessment from Dr. Porter, who reviewed the applicant's materials on behalf of John's Pizzeria and opined that to a reasonable degree of medical probability the applicant's activities at John's Pizzeria did not cause the applicant to develop bilateral carpal tunnel entrapment.

cc:
ATTORNEY DONALD C LUBNER
ATTORNEY PAUL R RIEGEL
ATTORNEY HUGH E RUSSELL
ATTORNEY JEROME A HIERSEMAN

Appealed to Circuit Court. Affirmed January 12, 1999. Appealed to Court of Appeals.  Affirmed (summary affirmance) December 22, 1999.

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