Wis.LIRC WC Decision: Anderson, Deanna - August 25, 1998 - ND � 5.30 - Schedule Injury - alleged total impairment for industrial use in both arms

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

DEANNA ANDERSON, Applicant

ASHLEY FURNITURE IND, Employer

NORTH RIVER INS CO, Insurer

WORKER'S COMPENSATION DECISION
Claim No. 89030644

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 the applicable law, records and evidence in this case, the commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

This case has been the subject of several earlier decisions. (1 ) The issue now before the commission was heard by ALJ Lawrence in 1996. Specifically, the applicant now alleges she has "a total impairment for industrial use" in both arms, and so is entitled to permanent total disability under Wis. Stat. � 102.44(2).

After her injury, the applicant attempted retraining and went to school for 14 weeks in the fall of 1992. She could not do computer work because of numbness in her hands, and eventually withdrew from school on the advice of her doctor.

At the time of the 1996 hearing before ALJ Lawrence, the applicant suffered muscle spasm in her arms, experienced numbness in her hands, and dropped objects involuntarily. She had trouble sleeping, doing housework, and at times driving a car. She noticed her arms have less strength and get tired more often.

The applicant also introduced letters dated January 1995, July 1993, and July 1995 from three medical doctors (respectively, Michael F. Finkel, R. N. Leasum, and Tuenis Zondag.) Each doctor opined that the applicant's work injury caused the applicant to be totally impaired in the industrial use of both arms.

The employer's independent medical examiner, Robert W. Swanson, M.D., reported in June 1996 that the applicant had reached a healing plateau as of August 1990. He rated permanent disability at five percent compared to loss of the hand at the right wrist, three percent compared to loss of the arm at the right elbow, and two percent compared to loss of the hand at the left wrist. He set out permanent work restrictions against frequent repetitive forceful grasping, frequent repetitive extremes of wrist motion, and frequent or prolonged use of vibratory tools. He permitted lifting up to 10 pounds frequently and 20 pounds occasionally.

ALJ Lawrence decided the matter in favor of the applicant, and found her permanently and totally disabled. The respondent petitioned for commission review. The commission remanded this case for additional evidence concerning the applicant's residual physical capacity.

On remand, the applicant offered the functional capacity report of Jean Glanzman, O.T.R., dated October 13-14, 1997. Ms. Glanzman opined the applicant could occasionally carry 20 pounds, frequently carry 10 pounds, and constantly carry four pounds. Ms. Glanzman also set limits for lifting from floor to bench height, at 15 (occassionally), seven (frequently) and two pounds (constantly). She also set limits on pushing and pulling. Balancing is prohibited; climbing and crouching are permitted rarely; stooping, bending, kneeling, and reaching while bending are permitted rarely to occasionally; and forward and overhead reaching are permitted occasionally. The applicant may use her hands for simple and firm grasping, but not for firm manipulation. Ms. Glanzman set no restrictions on neck motion.

Ms. Glanzman also reported that the applicant is able to perform work at the sedentary/light physical capacity level. Difficulties were noted with fingering and overhead reach activities. Indeed, Ms. Glanzman prohibited lifting or reaching above 61 inches from the floor (in addition to prohibiting working at heights, and repetitive firm manipulation with her hands.) Ms. Glanzman opined that her assessment tests yielded valid results.

In a note dated November 3, 1997, Dr. Zondag reiterated Ms. Glanzman's restrictions. He also reported that the applicant could do light work in terms of static lifting ability, and "dynamically" could do work in the sedentary-plus category.

The respondent submits the report of Bruce Davey, M.D., who had evaluated the applicant in 1992 and who re-examined her upon remand in October 1997. He concluded she had minor permanent partial impairment in both hands due to carpal tunnel surgery, that she was capable of productive work, that she should not be considered disabled from an industrial standpoint, and that her only work restrictions should be against repetitive use of her hands.

Wis. Stat. � 102.44(2) provides:

"(2) In case of permanent total disability aggregate indemnity shall be weekly indemnity for the period that the employe may live. Total impairment for industrial use of both eyes, or the loss of both arms at or near the shoulder, or of both legs at or near the hip, or of one arm at the shoulder and one leg at the hip, constitutes permanent total disability. This enumeration is not exclusive, but in other cases the department shall find the facts."

In light of the functional capacity evaluation performed by Ms. Glanzman, the validity of which was not disputed by Dr. Zondag, the commission cannot credit the opinions of Drs. Finkel, Leasum, and Zondag that the applicant's arms are totally impaired for industrial purposes. Ms. Glanzman's tests indicate the applicant may use her arms for lifting and carrying, and that she may do simple and firm grasping. Ms. Glanzman's estimate of the applicant's functional capacity quite closely parallels the report of Dr. Swanson. Consequently, the commission adopts Dr. Swanson's opinion that the applicant is capable of returning to work subject to restrictions.

The commission acknowledges that the work restrictions set by Ms. Glanzman limit the applicant to sedentary or sedentary- plus work and have a significant negative effect on her wage- earning capacity. However, the restrictions do not establish total impairment of the arms for industrial use. Nor does applicant's disability present the type of "unenumerated" impairment or disability for which the commission, finding the facts, may award permanent total disability.

Having reviewed the medical records and prior decisions, however, the commission cannot say with definiteness that the applicant will sustain no further medical expense or disability from the work injury in the future. Thus, the commission issues an interlocutory order to permit claims for any future additional temporary or permanent disability.

NOW, THEREFORE, the Labor and Industry Review Commission makes this

INTERLOCUTORY ORDER

The findings and order of the administrative law judge are reversed. The application for permanent and total disability is dismissed.

Jurisdiction is reserved for such further findings and orders as may be warranted consistent with this decision.

Dated and mailed: August 25, 1998
anderde.wrr : 101 : 7 � 5.30

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

The commission conferred with ALJ Lawrence about the applicant's credibility and demeanor. Transamerica Ins. Co. v. ILHR Department, 54 Wis. 2d 272, 283-84 (1972). The administrative law judge found the applicant to be a credible witness, though he did not observe any type of activity or behavior at the hearing which supported or undercut her testimony about her physical capacity. ALJ Lawrence also stated he was impressed that three treating doctors opined the applicant was not capable of working in an industrial setting.

However, the commission must conclude that Ms. Glanzman's functional capacity evaluation, not available to ALJ Lawrence, provides more reliable evidence of the applicant's residual functional capacity than the applicant's subjective report. For the reasons discussed in the body of this decision, the commission reversed ALJ Lawrence's finding that the applicant was permanently and totally disabled.

cc: ATTORNEY STEVE M JACKSON
PARRONI SIEDOW & JACKSON SC

ATTORNEY MICHAEL C FROHMAN
KASDORF LEWIS & SWIETLIK SC

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Footnotes:

(1)( Back ) In 1991, ALJ Roberta Arnold awarded substantial temporary total disability and 205.56 weeks of permanent partial disability for multiple injuries to the applicant's right and left extremities. ALJ Arnold concluded that the applicant's disability was caused by occupational disease, that is, by an appreciable period of workplace exposure to repetitive bilateral arm duties that was at least a material, contributory factor in the onset or progression of the applicant's disabling condition. The date of injury was the applicant's last day of work in 1989. ALJ Arnold's decision was not appealed. In 1992, ALJ Joseph Schaeve found the applicant eligible for vocational retraining and disfigurement. The commission affirmed ALJ Schaeve's decision in 1993. Later in 1993, ALJ James Lawrence found the applicant remained entitled to vocational rehabilitation benefits, and that the insurer was subject to a bad faith penalty. The commission affirmed that order in part and reversed it in part.