STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION
P O BOX 8126, MADISON, WI 53708-8126 (608/266-9850)
DIANA CINDY SZYDEL, Applicant
MANPOWER TEMPORARY SERV, Employer
TRAVELERS INS CO, Insurer
WORKER'S COMPENSATION DECISION
Claim No. 94036431
The administrative law judge issued his findings of fact and interlocutory order in this case on April 16, 1997, following a hearing on March 11, 1997. The employer and the insurer (collectively, the respondent) have submitted a petition for commission review of the administrative law judge's findings and order. Thereafter, both the respondent and the applicant submitted briefs.
Prior to the hearing, the respondent conceded jurisdictional facts, an average weekly wage of $178, and an August 28, 1993 compensable injury. The respondent conceded and paid temporary disability benefits from August 26, 1993 to October 7, 1993 and from January 19 to February 16, 1994, in the sum of $1,200.60. It also paid medical expense of $10,104, of which it now alleges $5,106.10 was overpaid. No permanent disability has been conceded or paid.
At issue before the ALJ, and now before the commission, is the nature and extent of disability beyond that conceded. Specifically, the applicant claims additional temporary disability to August 17, 1995; permanent disability on a functional basis at 25 percent at the wrist, two percent at the shoulder, and nine percent to the body as a whole; and permanent disability for loss of earning capacity at fifty percent. Liability for medical expense is also at issue; the respondent claims an overpayment of $5,106.10, while the applicant claims an additional $115 in treatment expense and $336.82 in mileage are due.
The commission has carefully reviewed the entire record in this case, including the briefs submitted by the parties. After consulting the administrative law judge concerning the credibility and demeanor of the witnesses, the commission hereby sets aside his findings of fact and interlocutory order, and substitutes the following therefor:
FINDINGS OF FACT AND CONCLUSIONS OF LAW
1. Employment history and work injury.
The applicant was born in 1957. She is four foot ten inches tall, and weighs 115 pounds. She is alleging disability from a work injury on August 28, 1993.
The applicant signed up with the employer, a temporary help agency, in June or July 1993. Her first assignment was with a business that steam-cleaned the interiors of buildings. Her second assignment, and the one in which she was working at the time of her injury, was with a plastics fabricating company called Spartek.
The applicant began working at Spartek in late July or early August 1993. Her first job with Spartek was to clip parts to a bar for painting. This job involved considerable reaching for the applicant; because of her small stature, she had to reach about to the level of the top of her head while repetitively clipping the parts to the bar.
According to the applicant, while doing this job, she began to notice tingling and aching in her hand, sometimes with swelling, and pain radiating through her shoulder into her mid- back. Her co-workers indicated such pain would be normal until she developed the muscles to do the job.
Evidently as a result of her complaints, though, the applicant was moved to another job, packing parts. She did this work for about a week until the worker who normally did the packing returned from vacation. The applicant then, was given a choice between assembly and spray-painting assignments. Because the spray-painting assignment was to last longer, she chose that one.
The applicant described the spray-painting as follows: She worked in a booth, wearing a mask and protective covering, and using a trigger-operated, compressed air painter holding a quart of paint. She would start by hanging or suspending the part to be painted from a nail in a stand on a bench. While squeezing the trigger of the paint-sprayer with her right hand, the applicant would paint the part while rotating the stand with her left hand. She held the paint sprayer at slightly higher than chest level. The applicant's unrebutted testimony was that she worked an eight-hour shift with one twenty minute break for lunch.
While doing the spray painting job, the applicant began to experience a swollen hand, with pain and tingling in the hand all the way into the arm and to her back. Eventually she could no longer hold the spray gun, and dropped it. Her foreman took her to a back room, and applied ice to her hand. She evidently had done the spray-painting job for a week before she could no longer continue. (1)
2. Treatment and subsequent employment.
The applicant initially treated at FSH Lake Tomah Clinic on August 27, 1993. The earliest treatment note in the record was written by Paul Green, M.D., of the Lake Tomah Clinic on September 3, 1993.
On that day, Dr. Green noted a 50 percent improvement in pain, presumably from the initial visit on August 27. The doctor noted that the applicant complained of numbness in her thumb, first and second fingers, and some numbness into her forearm, and pain into her shoulders upon waking. Dr. Green's assessment was probable carpal tunnel, but he wanted an EMG for confirmation. He released her to work with lifting and gripping restrictions on her right hand.
The EMG was done on September 10, 1993. It was interpreted as normal by neurologist Robert D. Gunnink, D.O.
The applicant returned to Dr. Green on September 16, 1993. She evidently told him that Dr. Gunnink read the EMG as showing slight carpal tunnel. She stated that her whole right arm was numb upon awakening, and that she awakens one night in four with a numb arm. She told the doctor her numbness would go away within fifteen minutes of waking, but then she would get numbness in her palms and fingers with activities like washing dishes. On examination, the doctor noted a near complete range of motion except for a limitation on reaching up. An x-ray done that day showed no abnormality.
Noting a decrease in pain, Dr. Green issued new, less limiting work restrictions. Dr. Green continued to diagnose carpal tunnel syndrome. He also instructed her to see Dr. Gunnink if her problems persisted for two weeks.
Evidently, her problems did persist, as she saw Dr. Gunnink again on October 7, 1993. Dr. Gunnink noted complaints of pain, swelling, tingling and numbness in the right hand, tingling and numbness in the right arm, and some right shoulder pain. He reported the pain had begun in late August when the applicant was doing a rather repetitive job with a spray painter. He noted the condition improved when she stopped working, but that she still got tingling in her right hand and tenderness in her shoulder.
On examination, Dr. Gunnink noted his nerve conduction test showed no evidence of carpal tunnel syndrome, and that the Phalen's and Tinel's tests were negative bilaterally. Dr. Gunnink's diagnostic impression was probable overuse tendonitis of the right hand, and bicipital tendonitis of the right shoulder. He allowed her to try to return to work without restrictions, but noted an orthopedic consultation would be advisable if her symptoms continued.
The only work Manpower was able to find for the applicant was short-term telephone solicitation. The applicant then found her own job with Toro assembling lawn mowers, which she started in mid-January 1994. On January 18, 1994, the applicant returned to Dr. Green complaining of right shoulder pain, right hand pain, and right hand numbness. She described the pain as exactly the same as what she experienced while working for Manpower, and told the doctor that working with a drill at Toro particularly aggravated her condition. She reported problems lifting and holding objects. Dr. Green's diagnosis was right shoulder strain, etiology unclear.
The applicant then saw Robert Riedle, M.D. on January 21, 1994, for an orthopedic consultation. The doctor noted right upper extremity complaints. He noted the onset of symptoms with the clipping job, a waning of symptoms with the packing work, and a recurrence of symptoms with spray-painting. He noted the clipping job involved shoulder abduction to 90 degrees, and that the job at Toro, which caused the most recent recurrence of symptoms, also involved shoulder abduction to 90 degrees. On examination, the doctor noted tenderness over the flexor and extensor muscles in the forearm, and in the shoulder on supraspinatus testing.
His diagnosis was "a rather global tendinitis," with some findings on examination consistent with carpal tunnel syndrome, though this was not borne out by the EMG. He also opined the conditions were related to her job at Manpower. Given that the symptoms returned when she worked at Toro, he thought she should find another line of work in which she would be able to avoid elevating her shoulder on a repetitive basis above 90 degrees of abduction. He recommended physical therapy, and work restrictions of no lifting or pulling over 10 pounds with her right arm, and no reaching or over-the-shoulder activities.
The applicant pursued physical therapy and went on a leave of absence from Toro. The initial note of the physical therapist mentioned pain in the entire right arm, and right shoulder in the area of the rotator cuff, deltoid muscles and rhomboid muscles.
In a note dated February 15, 1994, Dr. Riedle noted that physical therapy helped, but that the applicant still had tingling in her hand, and tenderness throughout her shoulder, indeed all the way into the clavicle, base of the neck, brachium and the trunk. He recommended she follow up with William Buchta, M.D. an occupational health specialist.
Dr. Buchta saw the applicant on February 16, 1994. He noted the development of right shoulder pain while employed at Spartek in racking work that involved prolonged abduction of the right shoulder to at least 90 degrees. He noted the improvement with the packing job, and the recurrence of symptoms with the spray- painting job. He also noted a whiplash injury in 1975 which resolved without residuals.
On examination, Dr. Buchta noted aching in the right shoulder, intermittent numbness in the fingers, and decreased strength and endurance in the right hand. The doctor noted that the cervical range of motion was essentially intact, with tingling to the upper right back with left lateral bending. He noted some very mild tenderness to the right cervical paraspinal muscles, and trigger points in the rhomboids causing radiation of pain down the latissimus and posterior rotator cuff. The active range of motion in the shoulder was nearly normal at 170 degrees in flexion, but only 140 degrees in abduction. He also noted a positive Tinel's sign and Phalen's test.
Dr. Buchta's diagnosis was strain to the right scapulothoracic unit with secondary myofascical pain syndrome causing muscle tightness and swelling and secondary compression of the median and ulnar nerves of the right hand. He believed the problem was precipitated by activities at Spartek. He noted no history of problems at the right shoulder girdle. He also noted she was expected to do jobs with her nondominate hand (2) and posture which would be difficult for most people, and especially difficult for someone under five feet tall. His plan was for two or three months of physical therapy and to limit abduction of her arm of more than 45 degrees away from the body.
On follow-up on March 3, 1994, Dr. Buchta noted that Toro would not take the applicant back with her restrictions. He noted she continued to have pain and tingling in her arm, and limitation in abduction of her shoulder. He continued to diagnose right upper extremity strain and secondary myofascial pain syndrome.
The doctor noted improvement with physical therapy in March 1994. His diagnosis on March 31 was strain to right shoulder girdle with persistent myofascial pain. He noted a full range of motion in the cervical spine with only a slight limitation in lateral bending, and a full range of motion in the right shoulder but with a jerking motion turning the arm due to some abnormal scapula-thoracic motion. He also noted a trigger point in the scapula, in the area of the rhomboid muscles. He stated he would try trigger point injections. The injections helped the applicant's condition.3(3)
Dr. Buchta ordered a functional capacity evaluation (FCE) on April 28, 1994, on a diagnosis of right shoulder myofascial pain. The FCE was done on May 11-12, 1994. The physical therapist who performed the FCE limited the applicant to 25 pounds of lifting and 30 pounds of carrying. The therapist also noted in the FCE that lifting tasks were limited by "back pain" defined as pain in the upper trapezius and rhomboid going into the glenohumeral joint. The overall physical demand characteristics of the work permitted was light duty with 25 pound floor to knuckle lift, once per shift. The testing physical therapist noted that most tasks were limited by pain and paresthesia in the right shoulder girdle.
Dr. Buchta concluded the applicant could return to work on May 12, subject to permanent restrictions in the FCE. Dr. Buchta also stated the applicant was 80 percent improved from her February visit, that she rarely took medication for pain, but that she had intermittent left elbow pain if she leaned on it too long. Dr. Buchta assessed overuse strain with secondary myofascial pain syndrome to the right upper back with intermittent symptoms consistent with a thoracic outlet syndrome of a muscular nature. See Exhibit 1, pages 6 and 7.
At this point, the applicant moved to Wyoming. She found part time work in a bookstore which met the work limits in the May 1994 FCE ordered by Dr. Buchta. She started at $4.50 per hour; she now makes $5.75. She also works as a kind of overnight companion for the infirm. She started this work at $15 per night; she now earns $25.
After she moved to Wyoming, the applicant was examined by an independent medical examiner Michael Ford, M.D., at the respondent's request. Dr. Ford examined the applicant on February 21, 1995. He described the history of her work injury at Spartek consistently with the applicant's hearing testimony and the histories she gave to other doctors. He noted her employment at a bookstore, and that she seemed to be cooperative.
On physical examination, Dr. Ford noted a restriction in the range of motion of the cervical spine and shoulder. He noted persistent pain radiating into the applicant's shoulder. The doctor's diagnostic impression was cubital tunnel syndrome with a myofascitis of the shoulder unit. He thought the applicant's symptoms all originated with her job at Spartek, and that work at Toro played no causal role.
He wanted to find out whether she had a neurologic basis for her symptoms, so he ordered an EMG and nerve tests. The EMG showed mild carpal tunnel syndrome and mild chronic neuropathic changes of the right ulnar nerve distribution. He thought part of her symptoms might be relieved by doing carpal tunnel surgery, and part by doing a Guyon's canal release,4(4) but thought she might also have a chronic neuropathy of the ulnar nerve that would remain symptomatic.
Nonetheless, in a March 20 addendum to his February 21, 1995 report, Dr. Ford stated he felt the applicant had a right carpal tunnel syndrome and right cubital tunnel syndrome which occurred secondary to her job at Spartek. Based on her description of her job duties, the doctor opined that the applicant had suffered a kind of repetitive use syndrome. He thought a surgery would very likely enable her to return to work without restrictions. The insurer authorized the surgery.
On August 11, 1995, then, Dr. Ford performed a right cubital tunnel and Guillian canal release for ulnar nerve polyphagia. She was able to return to work at the bookstore by September 7. On October 5, 1995, Dr. Ford noted complete relief of the median nerve symptoms since the surgery, but that neural symptoms continued. He wanted to do an EMG, but suspected that she might have permanent nerve damage due to scarring from two years without treatment.
On October 17, 1995, Dr. Ford reported the EMG and nerve conduction studies showed a complete recovery on an electrical basis. He did note a sensory loss of fifty percent in the ulnar nerve on the right hand, however, by doing a pin prick discrimination test. He also noted pinch strength at the right of "8" compared to "10" on the left, and grip strength of "5" on the right compared to "10" on the left.
On November 9, 1995, Dr. Ford rated permanent disability at 14.5 percent of the right arm or nine percent to the whole body. However, Dr. Ford, a Wyoming practitioner, used AMA standards rather than Wisconsin workers compensation standards, in reaching this rating. Dr. Ford was then provided with the Wisconsin standards; with this he rated a 22 to 25 percent loss at the right hand (half for nerve loss and half for motor loss).
The applicant returned to Dr. Ford on January 25, 1996, with complaints of neuropathy in her hand when she did vigorous work. He gave her elastic bands for a strengthening exercise. He noted the other alternative would be to inject the subscapular bursa.
On May 30, 1996, the applicant complained of increasing shoulder pain, and concern about her ability to drive 1,300 miles to Wisconsin to visit family members. She also complained of neuropathy problems, noting that she was improved after surgery but still not good enough to be totally independent. The doctor gave her an injection in the subacromial bursa with good results. The next day she was complaining of tightness or spasming in her neck, for which the doctor prescribed medication.
Despite Dr. Ford's opinion, the insurer denied liability for the applicant's claim. On July 16, 1996, Dr. Ford wrote to the insurer, relaying his impression that the applicant had right shoulder complaints as a result of the chronic neuropathy in her right shoulder. He explained that he believed her inability to use her right arm prior to the surgery caused weakness in her scapular stabilizers which resulted in bursitis or tendinitis between the scapula and the ribcage. He thought consultation with an orthopedic surgeon would be a good idea, particularly one who understood "the relationship of the shoulder and scapular problems for chronic disuse neuropathy of the right hand and elbow."
The applicant testified she continues to experience numbness and tingling in her arm, shoulder and back after the work injury. She is able to do household chores with the help of her children, but has had to give up hobbies including dog grooming and cross- country-skiing, and curtail crocheting.
3. Expert medical opinion; expert vocational opinion.
The record contains several documents giving expert medical opinion. Exhibit B is Dr. Buchta's report dated June 10, 1994. The doctor refers to his attached note for a fairly accurate description of the work injury. For a description of the injury, he reports "thoracic strain with secondary myofascial pain syndrome to right scapulothoracic unit" and refers to attached notes. He also opines that the employe could return to work with permanent work restrictions (i.e., reached a healing plateau) on May 12, 1994, and referred to the FCE discussed above for work restrictions.
Regarding causation, Dr. Buchta opined that work exposure (the clipping [racking] and spray-painting duties requiring prolonged abduction of the shoulder to at least 90 degrees) was at least a material, contributory factor in the onset or progression of the applicant's disabling condition; in other words, causation by occupational disease. He rated permanent partial disability at 3 percent to the body as a whole for weakness and decreased endurance associated with lifting, gripping and pinching with the right arm. He anticipated no further treatment if the applicant worked within her restrictions.
Dr. Ford, who was the insurer's first independent medical examiner and later a treating doctor, also opined that the applicant's work at Spartek resulted in an injury causing disability as discussed above. He rated permanent partial disability at 22 to 25 percent compared to amputation at the hand, for right hand sensory loss and motor loss. His reports, while not on the standard department form, were received into evidence without objection.
The applicant was also examined by a second independent medical examiner, Richard Karr, M.D. On physical examination, he noted no restrictions in motion anywhere in her neck, shoulder or arm, and no sign of muscle wasting. He did note give way weakness at multiple muscle groups in the right upper extremity.
Dr. Karr's diagnoses were right arm strain/sprain secondary to workplace exposure, and right upper extremity myofascial pain syndrome sequela of the strain/sprain. He also diagnosed right arm carpal tunnel syndrome and right shoulder bursitis and tendinitis, which were unrelated to work. He concluded that her current symptoms were partially due to the work injury, and partially pain behavior unrelated to the work injury.
In explaining his conclusions, Dr. Karr noted the applicant's relatively short duration of employment at the employer's business; the lack of a specific trauma; the normal EMG in October 1993; Dr. Buchta's notation of the 80 percent improvement by May 12, 1994; and the fact that while carpal tunnel syndrome was diagnosed based on the February 1995 EMG, it was not present in the October 1994 EMG. Dr. Karr also described the applicant's complaints beginning in 1994 as diffuse and nonlocalized. He noted that the February 1995 EMG results showed only very minor problems, and the final EMG done in October 1995 was normal despite Dr. Ford's subsequent permanent partial disability rating for sensory loss.
Dr. Karr concluded that the applicant had reached a healing plateau from the work injury by May 12, 1994 (the date of the FCE). He opined the work injury caused permanent partial disability at 2 percent compared to loss of the right arm at the shoulder. He also opined the work injury made necessary restrictions against lifting more than 40 pounds and against work with the right upper extremity at or above shoulder level. He also concluded the carpal tunnel surgery done by Dr. Ford in August 1995 was not made necessary by the work injury.
Finally, the applicant submits a report from a vocational expert, Lawrence Hollingsworth. The expert concluded, after reading all of the medical reports, that the applicant could do light or sedentary work, which comprised 60 percent of the labor market. He also concluded that the restriction against use of the right arm resulted in another 10 percent reduction from the 60 percent, so he rated a 50 percent reduction in earning capacity.
4. Discussion; award.
As noted above, while the respondent concedes the work injury, the nature and extent of disability from that injury are at issue. The first issue is the extent of temporary disability. The commission concludes that the applicant was temporarily disabled through May 12, 1994, the dates given by both Dr. Buchta and Dr. Karr. The respondent paid temporary disability only to February 16, 1994, so it is liable for temporary total disability for the 12 week period from February 16 through May 12, 1994. The respondent is also liable for temporary total disability for the three week, five day period from August 11, 1995 (when Dr. Ford performed surgery) to September 7, 1995 (when the applicant returned to work). Since the second period of temporary disability began less than 2 years after the date of the work injury, recalculation at the temporary disability compensation rate under Wis. Stat. § 107.43 (7) is not necessary.
In sum, then, the respondent is liable for 15 weeks 5 days of temporary total disability compensation.
The next issue is permanent disability. The respondent offers the report of its independent medical examiner, Dr. Karr, who rated permanent partial disability at two percent compared to loss of the right arm at the shoulder. The commission accepts Dr. Karr's rating as conceded and supported by the record.
Dr. Ford rated permanent partial disability at 25 percent compared to loss of the right hand at the wrist. One might argue Dr. Ford's rating and Dr. Karr's were meant to be exclusive ratings; that is, that the commission should pick one or the other. Dr. Ford did not rate shoulder disability and Dr. Karr opined the applicant's hand and arm problems were not work- related.
However, all the doctors agree the applicant has hand, arm and shoulder problems. Dr. Karr attempts to segregate out the hand and arm problems from the shoulder problems based on the EMGs. Nonetheless, given the applicant's credible testimony about her symptoms and their onset, as well as the nature of the applicant's work at Spartek, the commission concludes that the hand, arm and shoulder problems are related to the same work injury. Awarding disability at both the wrist and the shoulder is consistent with Dr. Ford's final note indicating shoulder problems in addition to the hand and arm problems for which he had previously rated disability at the wrist. The commission thus conludes the applicant has also established permanent partial disability equal to 25 percent compared to amputation at the wrist.
On the other hand, the commission is left with a legitimate doubt as to whether the applicant sustained any unscheduled disability to the back or neck. It is true that Dr. Buchta's final diagnosis was thoracic strain with secondary myofascial pain syndrome to the right scapulothoracic unit. The thorax, of course, is in the trunk of the body. Permanent disability to the thorax or the thoracic or cervical spine thus is unscheduled, as opposed to disability to the shoulder or arm which is compensated according to the Wis. Stat. § 102.52 schedule. The commission also acknowledges that an injury to a scheduled part of the body, such as the arm or shoulder, which extends to an unscheduled part of the body and interferes with its use or efficiency, is compensable by payment of unscheduled disability. Mednicoff v. DILHR, 54 Wis. 2d 7, (1972).
However, when Dr. Buchta explained his three percent whole body permanent disability rating, he mentioned only weakness and lack of endurance in the right arm. As late as March 31, 1994, (the date of the last note attached to his practitioner's report), the doctor's assessment was "strain to the right shoulder girdle with persistent myofascial pain." In addition, the report of the physical therapist who prepared the May 12, 1994, FCE reported that the applicant's ability to work was limited by pain in the glenohumeral joint (i.e. the shoulder) or the right shoulder girdle. In sum, Dr. Buchta and the physical therapist describe scheduled disability, to be rated at the shoulder. See Hagen v. LIRC, 210 Wis. 2d 12, 18-23 (1997).
Further, of course, Dr. Ford rated disability only at the hand. His subsequent diagnosis of shoulder and scapular problems from chronic disuse neuropathy of the right hand and elbow, also supports the conclusion that the applicant's problem is in the arm and shoulder and therefore scheduled. As both a treating doctor and an independent medical examiner, his opinion on the extent of disability is given careful consideration. Finally, to the extent Dr. Buchta is diagnosing a thoracic outlet syndrome, the commission has previously held that that condition is scheduled, even though the thorax is part of the unscheduled trunk of the body, when the disability caused by the condition is confined to the shoulder and arm.5(5)
Because the commission concludes the applicant did not sustain any unscheduled disability, compensation for loss of earning capacity may not be awarded. Mednicoff, 54 Wis. 2d 11- 12; Langhus v. LIRC, 206 Wis. 2d 493, 505 (Ct. App., 1997). In sum, then, the commission awards functional permanent disability at two percent compared to loss of the arm at the right shoulder and 25 percent compared to loss of the right hand at the wrist.
A 25 percent loss at the right wrist results in 100 weeks of permanent partial disability compensation. Wis. Stat. § 102.52 (3). These 100 weeks must be subtracted from the 500-week base for calculating the loss at the shoulder. Wis. Admin. Code § DWD 80.50 (1). As a result, the award for the two percent loss at the right shoulder in this case results in 8 weeks of permanent partial disability compensation under Wis. Stat. § 102.52 (1), and is increased to 9.6 weeks because of the multiple injury multiplier under Wis. Stat. § 102.53 (4). In sum, the applicant is entitled to 109.6 weeks for permanent partial disability, all of which has accrued.
The applicant's average weekly wage was $178 per week, resulting in a $118.67 compensation rate for both temporary total disability and permanent partial disability. The applicant is therefore entitled to $1,878.89 (15 weeks, 5 days at 118.67 per week) in temporary total disability, and $13,005.87 (109.6 weeks at 118.67 per week) in permanent partial disability compensation.
The applicant has authorized a 20 percent attorney fee on additional amounts awarded under Wis. Stat. § 102.26. The fee equals $2,976.95 (20 percent of [$1,878.89 plus $13,005.87]). The fee shall be deducted from the applicant's award and paid to her attorney within 30 days. The remainder, $11,907.80, shall be paid to the applicant within 30 days.
The final issue is liability for medical expense. The respondent asserts that the carpal tunnel surgery performed by Dr. Ford was not work-related, so that it overpaid medical expenses. The commission notes from Exhibit F that the employer authorized the surgery recommended by the employer's own independent medical examiner at the time, Dr. Ford. The commission also finds credible Dr. Ford's opinion that his treatment was undertaken to cure and relieve the effects of the work injury. The expenses of the carpal tunnel surgery were reasonable and necessary to cure and relieve the effects of the work injury and were not overpaid.
Indeed, the sum of $115 remains outstanding to Riverton Orthopedic Chiropractic Clinic, for follow-up treatment of the applicant's shoulder by Dr. Ford on May 30, 1996; the respondent is liable for that amount. In addition, the respondent is liable for $336.82 in medical mileage incurred by the applicant.
Because the applicant may incur additional medical expense and incur further periods of disability, this order shall be made interlocutory.
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 from the date of this order, the employer and its insurer shall pay all of the following:
(1) To the applicant, Diana C. Szydel, Eleven thousand nine hundred seven dollars and eighty cents ($11,907.80) for disability compensation.
(2) To the applicant's attorney, Stephan Rogge, Two thousand nine hundred seventy-six dollars and ninety- five cents ($2,976.95) in attorney fees.
(3) To Riverton Orthopedic Clinic, One hundred and fifteen dollars ($115) in medical treatment expenses.
(4) To the applicant, Three hundred thirty-six dollars and eighty-two cents ($336.82) her medical mileage.
Jurisdiction is reserved for such further orders and awards as may be warranted consistent with this decision.
Dated and mailed: December 5, 1997
szydedi.wrr : 101 : 7 ND § 5.20
Pamela I. Anderson, Chairman
David B. Falstad, Commissioner
The commission conferred about witness credibility and demeanor with the administrative law judge who presided at the hearing. Transamerica Ins. Co. v. ILHR Department, 54 Wis. 2d 272, 283-84 (1972). The administrative law judge found the applicant, the only witness to testify, to be credible. The commission does not dispute this. However, for the reasons explained above, the commission is not persuaded that the medical record supports her claim for unscheduled disability from the work injury.
ATTORNEY STEPHAN A ROGGE
PARK O'FLAHERTY LTD
ATTORNEY AHMED J QUERESHI
CRIVELLO CARLSON MENTKOWSKI & STEEVES SC
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(1)( Back ) Dr. Ford's report, February 21, 1995.
(2)( Back ) While the applicant writes with her left hand, she testified she does everything else with her right hand; the commission cannot conclude the applicant was forced to use her nondominant right hand. 3
(3)( Back ) Dr. Ford's note for February 21, 1995. 4
(4)( Back ) This is also reported as a Guillain's release; the commission is unsure which is correct; Guyon was a French surgeon and Guillain was a French neurologist. 5
(5)( Back ) Ostrum v. Ore-Ida Foods, WC claim no. 89024090 (LIRC, June 1, 1995), rev'd on other grounds circuit court case no. 95CV240 (Wis. Cir. Ct. Sauk County, January 29, 1996), circuit court reversed, LIRC order affirmed in total, case no. 96-06211 (Wis. Ct. App., October 1, 1997); and Loisel v. Unisys, WC claim no. 880149088 (LIRC, March 13, 1993).