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


RICKY NELSON, Applicant

ASSOCIATED MILK PRODUCERS INC, Employer

AMERICAN MOTORISTS INS CO, Insurer

WORKER'S COMPENSATION DECISION
Claim No. 1994040617


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.

ORDER

The findings and order of the administrative law judge are affirmed.

Dated and mailed: September 30, 1998
nelsori . wsd : 101 : 1  ND § 5.18   5.33

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

The employer and insurer (collectively, the respondent) concede a work injury, which was ultimately diagnosed as lateral epicondylitis in the left elbow. The applicant ultimately underwent a surgical reconstruction of the left epicondyle. Following the healing plateau, treating surgeon Randall J. Gall, M.D., noted an essentially normal range of motion extension- flexion, a nearly normal range on pronation-supination, but a significant loss of grip strength. He rated permanent disability at 25 percent compared to amputation at the shoulder, explaining his rating was 20 percent loss of strength and five percent for pain. Dr. Gall's rating paralleled that of another treating doctor, Neal Taylor, M.D. The respondent's independent medical examiner, Kenneth C. Lay, M.D., rated disability at two percent compared to amputation at the elbow, noting a slight lack of elbow extension, and signs of radiating numbness and tenderness.

The respondent conceded and paid permanent partial disability at two percent based on IME Lay's rating. At issue at hearing was the extent of additional permanent partial disability, if any, and the respondent's liability for additional medical expenses.

The ALJ awarded a seven percent permanent partial disability at the left elbow, and ordered all the medical expenses paid. In explaining her rating, the ALJ noted the applicant's testimony that he regularly exceeded his work restrictions (and indeed seemed to work with no restriction), and despite doing so needed no follow-up medical care in 1997. The ALJ also explained that her viewing of the videotape indicated that the applicant could work beyond the restrictions against lifting more than five pounds or working repetitively, and that he could do more work at home than he admitted (though the ALJ acknowledged the tapes might not be representative.) For these reasons, the ALJ concluded that the ratings of Dr. Neal Taylor and Dr. Gall were excessive. Conversely, she thought IME Lay's rating, which was based on a very minor loss of motion but did not consider loss of strength or endurance, was too low. Both sides have appealed.

The applicant asserts that the ALJ should have adopted the 25 percent rating given by the treating doctors. He questions the motivation of IME Lay, points out that the employer required him to exceed his restrictions at work (a point the ALJ seemed to acknowledge), and that the videotapes do not prove how much anything he carried weighed.

After reviewing the videotape and considering the record, the commission is satisfied that while Dr. Lay did not give the applicant's loss of strength sufficient weight, Dr. Gall's estimate gave loss of strength too much weight. Beyond the activities shown in the videotape and the applicant's testimony that he exceeded his work restrictions, the commission notes that the applicant's left arm grip strength was 35 pounds in September 1996 (18 months after surgery), after having been 62 pounds in February 1996 (1) or 78 pounds in March 1996 (2) (one year after surgery.) The medical records do not explain this dramatic decrease in strength, and the commission concludes that Dr. Gall's assessment of a 35 pound grip strength in September 1996 was not wholly reliable.

The applicant also argues that he is entitled to have his permanent disability award, however it is rated, increased by 25 percent under Wis. Stat. § 102.54. That section provides:

"If an injury to an employe's dominant hand causes a disability specified in s. 102.52(1) to (9) or amputation of more than two thirds of the distal joint of a finger, the period for which indemnity is payable for that disability or amputation is increased by 25%."

The department's interpretative footnote explains

"156 (3) This provides for an increase for injuries to the dominant hand that result in any amputation beyond 2/3 of a distal phalanx or 100 percent loss of use of any joint in the hand or arm."

Because this case did not involve a total loss at the elbow, the ALJ did not apply the multiplier.

The applicant asserts that the multiplier by statute applies to all disabilities in a dominant arm, as evidenced by use of the disjunctive terms "disability or amputation." The department footnote which limits the multiplier only to amputations or total losses, the applicant argues, conflicts with the plain reading of the statute.

However, Wis. Stat. § 102.52(1) through (9) provides the weeks of compensation for a total loss at specified joints; scheduled awards for less than a total loss at a joint are provided for under Wis. Stat. § 102.55. Thus, only disability from a total loss (whether caused by amputation or otherwise) in the dominant arm, (4) not simply any disability in the arm, is entitled to the one-quarter multiplier under Wis. Stat. § 102.54. Had Wis. Stat. § 102.54 been meant to include losses or disability less than total at the specified joint, the statute would include a cross-reference to Wis. Stat. § 102.55(3). (5) In sum, the department's footnote is consistent with the plain reading of the statute, and thus is entitled to the consideration normally accorded the footnotes by the courts. Pigeon v. DILHR, 109 Wis. 2d 519 (1982).

Moreover, the commission notes that Wis. Stat. § 102.54 by its terms applies to injuries to the dominant hand. There is considerable question as to whether the applicant has sustained such an injury in this case.

The commission has also considered the respondent's petition. The respondent does not argue it should not have to pay the medical expenses, and since these were received for the work injury in good faith, the employer is liable as a matter of law under Spencer v. DILHR, 55 Wis. 2d 525, 532 (1972). Instead, the respondent asserts that the ALJ's seven percent rating is too high. However, the commission agrees with the ALJ's conclusion that, while Dr. Gall over-estimated the applicant's loss of strength and endurance, Dr. Lay undervalued it. Even the highest grip strength noted by Dr. Lay in his March 1996 report (85 pounds) is less than the pre-surgery rating of 100 pounds. (6) On this record, the ALJ appropriately exercised her authority under Wis. Stat. § 102.18(1)(d).

cc: ATTORNEY PAUL S CURRAN
CURRAN HOLLENBECK & ORTON SC

ATTORNEY ANDREW J QUARTARO
PETERSON JOHNSON & MURRAY SC


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Footnotes:

(1)( Back ) Exhibit B, February 1, 1996 report of Neal Taylor, M.D.

(2)( Back ) Exhibit 1, March 4, 1996 report of Lay, page 2.

(3)( Back ) See, for example, Wis. Stat. § 102.55 (2).

(4)( Back ) As does Wis. Stat. § 102.53 (intro.) which provides for the "multiple injury multiplier."

(5)( Back ) See exhibit B, note for July 18, 1995.