Wis.LIRC WC Decision: Polsin - November 11, 1998 - ND � 5.18 - Schedule Injury separate disabilities to be rated separately even when a compensable disability is distal to the original disability, such as with the wrist and fingers

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

ROBERT POLSIN, Applicant

OSCAR J BOLDT CONSTRUCTION, Employer

ST PAUL FIRE & MARINE INS, Insurer

WORKER'S COMPENSATION DECISION
Claim No. 1996049458

The employer and its insurance carrier submitted a petition for commission review alleging error in the administrative law judge's Findings and Order issued in this matter on March 16, 1998. The applicant submitted an answer to the petition and briefs were submitted by the parties. At issue are whether the applicant sustained an injury arising out of and in the course of his employment with the employer, and if so, nature and extent of disability and liability for medical expense.

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

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The applicant, whose birthdate is April 21, 1937, was employed for 21 years as an iron worker for the employer, a construction company. He retired from this employment on April 29, 1994. His work involved handling, bolting, and impacting steel girders. One particularly relevant aspect of his job duties was his frequent use of a pneumatic impactor to torque bolts. The impactors weighed between 30 and 50 pounds, and could deliver up to 1,000 pounds of torque. Another significant aspect of the job involved drilling into concrete with electric rotor hammers. It was not uncommon for the applicant to drill into a reinforcement rod imbedded in the concrete, causing the rotor hammer to twist the applicant's wrist before he could release the trigger.

The applicant indicated that it was probably sometime in 1993 when he first noticed problems with his right wrist. The symptoms became more pronounced, especially when he used the rotor hammer or impactor. On April 22, 1994, he was seen by Dr. John R. Lindstrom for a knee injury, and while there he told Dr. Lindstrom about his right wrist symptoms of pain and swelling. Dr. Lindstrom's clinic note recounts that the symptoms had increased since January 1994, and that there were no major fractures to the wrist, but the use of impact wrenches, rotor hammer, and other tools over the years had been a source of repetitive, multiple trauma. He initially diagnosed post- traumatic osteoarthritis of the right radial carpal joint with mild ankylosis. Dr. Lindstrom suggested fusion of the wrist but the applicant was not receptive to this.

After the applicant's retirement from the employer, his right wrist condition progressively worsened. He continued to run a 100-acre Christmas tree farm with his son, which included tree-trimming duties. He also performed some part-time work as a foreman and iron worker for another construction company, as well as construction of sunrooms and decks for a part-time business of his own.

On May 23, 1995, the applicant began treatment with a physician specializing in rehabilitation and surgery of the hand, Dr. John C. Bax. Dr. Bax took a history of increasing right wrist pain and swelling over the applicant's final year of employment with the employer. He also wrote that there had been numerous occasions where he had twisted and injured the wrist at work, but that no worker's compensation claim had ever been filed. Dr. Bax diagnosed scaphoid-lunate advanced collapse (SLAC) of the right wrist and recommended a limited or complete wrist fusion. Dr. Bax wrote:

"I think Mr. Polsin's right SLAC wrist is very compatible with previous injury to the scapholunate ligament. It takes a significant amount of force to rupture the scapholunate ligament. As you know, an untreated scapholunate dissociation leads to a SLAC wrist. Because of the type of work he used to perform and the fact that he states he has twisted and injured his wrist during the heavy type of work, the SLAC wrist is probably work compensable."

Dr. Bax examined the applicant again on December 6, 1995, at which time the applicant indicated his hand was becoming more and more symptomatic. The applicant agreed to proceed with surgery, which Dr. Bax performed on January 8, 1996. This involved an SLAC wrist reconstruction with limited fusion and an interpositional tendinous arthroplasty at the scaphoid. Dr. Bax also excised a tumor from the applicant's right little finger, and performed a Bauer hemiresection arthoplasty at the applicant's right elbow. Pre-operative x-rays had revealed osteoarthritis in the right elbow. The surgery was very largely successful in relieving the applicant's symptoms, although limitation of motion prompted Dr. Bax to assess 15 percent permanent partial disability at the wrist. Dr. Bax additionally assessed permanent partial disability to each of the fingers of the applicant's right hand (excluding the thumb), which he found had sustained mild but permanent loss of motion due to post- surgical swelling and stiffness. On November 21, 1996, Dr. Bax wrote a short letter to the applicant's attorney indicating that it was his opinion the applicant's SLAC wrist was due to his employment with the employer, which involved using heavy equipment and pneumatic tools.

At the insurer's request, Dr. James G. Gmeiner examined the applicant on February 3, 1995. In his evaluation dated January 25, 1995, Dr. Gmeiner diagnosed osteoarthritis of the right wrist with no permanent disability. Dr. Gmeiner performed a second examination on November 6, 1997, in which he concurred with the diagnosis of SLAC wrist, but opined that it was not causally related to the applicant's employment with the employer. Dr. Gmeiner wrote:

"It is well known that the scaphoid-lunate advanced collapse (SLAC) is the most common pattern of degenerative arthrosis in the wrist. The development of the SLAC wrist will follow a sequence of degenerative changes involving specific joints of the carpus. Usually, there is a ligamentus or bony injury that will destabilize the carpus, most commonly the scapholunate dissociation or a scaphoid fracture that would result in a non union. There are no medical records indicating that such an injury has occurred, and it has been assumed that the claimant's condition is related to his occupational exposure and use of the pneumatic power tools. The claimant had no past history of a fall resulting in a scaphoid fracture with a non union. I could not detect in any of the medical records where the claimant sustained an injury to the right wrist resulting in ligamentus disruption of the scaphoid-lunate joint."

Dr. Gmeiner assessed 15 percent permanent partial disability at the right wrist, as a result of the SLAC and surgery. He noted in a supplemental report that this assessment included a permanent partial disability rating for the mild loss of motion in the applicant's fingers.

Considering the type of work the applicant performed for the employer over a 21-year period, Dr. Bax's opinion of occupational work causation is accepted as credible. Dr. Gmeiner's opinion relies heavily on the fact that the applicant's medical history does not include any specific injury resulting in a scapholunate dissociation or scaphoid fracture resulting in a nonunion. However, Dr. Gmeiner does not disagree with the diagnosis of SLAC, and his opinion that the aforementioned specific injury "usually" precedes a SLAC condition proves at best that this is not one of those "usual" cases.

Dr. Bax's assessment of 15 percent permanent partial disability,at the right wrist, as well as his assessment of additional permanent motion limitations in the fingers of the right hand, are also accepted as credible. (1 ) Dr. Gmeiner's supplemental opinion effectively conceded that there was permanent limitation of motion in the applicant's fingers, and such disabilities are properly rated separately rather than lumping them in with an estimated permanent partial disability at the wrist. The commission viewed the videotape evidence which shows that, among other things, the applicant is able to perform a significant portion of normal iron worker duties. However, neither the commission nor the administrative law judge, with whom the commission consulted for credibility impressions, was persuaded by the videotapes that the applicant had no loss of motion in his fingers.

The administrative law judge reserved jurisdiction with regard to the issue of temporary disability, based on his deduction that the applicant may have been able to legitimately claim temporary disability for some period(s) prior to the hearing date. The commission understands and respects the administrative law judge's concern that the applicant receive all the worker's compensation to which he may be entitled. However, the applicant not only failed to claim any temporary disability in his application for hearing, but testified at the hearing that he was not making a claim for temporary disability between the date of his retirement and the date of hearing. The applicant was afforded full and fair opportunity for hearing with regard to this issue. Concerns of fundamental fairness and finality require that respondents be allowed to rely on the applicant's explicit denial of any temporary disability claim for any period up to the date of hearing.

The administrative law judge also awarded payment of all the medical expenses claimed by the applicant. However, the record demonstrates that certain of these expenses are probably attributable to surgical treatment for the applicant's right elbow and right little finger, which were not shown to have been related to the applicant's work injury. Accordingly, the matter will be remanded to the department to allow determination of which medical expenses are attributable to the work-related injury to the applicant's right wrist. The applicant should expedite this procedure by sorting out which medical bills are attributable to the work injury, and presenting them to the insurer for payment. Any disputes regarding this issue are subject to adjudication before an administrative law judge.

The administrative law judge awarded permanent partial disability in the total amount of 198.33 weeks at $158 per week, for a total of $31,336.14, less accrued attorney fees and interest credit. Respondents assert that the department work sheet, which calculated the compensation due in accordance with the administrative law judge's findings, showed 126.33 weeks of permanent partial disability due the applicant. The record before the commission does not contain the department worksheet or any other explanation of how the permanent partial disability award was calculated. Accordingly, the matter will also remanded to the department with respect to the issue of calculation. The department should recalculate the amounts due, and copy the parties with its calculations. The insurance carrier should then make immediate payment unless it has a legitimate dispute with the calculations, in which case such dispute would also be subject to adjudication before an administrative law judge.

Dr. Bax completed a WKC-16 dated September 3, 1996, in which he responded to the query of whether further treatment should be given with the response: "None noted." However, in their petition, respondents indicated that the administrative law judge's reservation of jurisdiction with respect to the possibility of future disability was appropriate. Accordingly, that finding will remain undisturbed.

NOW, THEREFORE, this

INTERLOCUTORY ORDER

The Findings and Order of the administrative law judge are affirmed in part and reversed in part. The matter is remanded to the Worker's Compensation Division for resolution in accordance with the above findings.

Jurisdiction is reserved with respect to the proper calculation of the permanent partial disability awards in accordance with the above findings, with respect to the proper amount of medical expense due in accordance with the above findings, and with respect to the possibility of additional disability and medical expense which may accrue subsequent to the hearing date of February 5, 1998.

Dated and mailed: November 11, 1998
polsiro.wrr : 185 : 7 ND � 5.18

/s/ David B. Falstad, Chairman

Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

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Footnotes:

(1)( Back ) Respondents assert that Dr. Bax incorrectly assessed permanent partial disability at the fingers, as well as at the wrist. They assert that permanent partial disability could not be awarded to the applicant's fingers, because the only work injury was to his wrist. However, Dr. Bax credibly opined that the applicant had sustained permanent partial disability to his right fingers, due to the effects of the work-related surgery to the right wrist. The permanent partial disability to the applicant's fingers was therefore a compensable consequence of the right wrist surgery, and the applicant is entitled to payment of such permanent partial disability subject to subtraction of the distal disabilities (fingers) from the proximal disability (wrist), pursuant to Wisconsin Administrative Code DWD 80.50(1). Respondents cited previous LIRC decisions in which it asserted a rule was applied that disabilities in the fingers and wrist were rated only at the wrist. This is incorrect. Where there is finger and wrist disability but the physician only gives a permanency rating at the wrist, to include the disability at the fingers, the commission must award permanency in accordance with that opinion. However, it is technically correct for the physician to rate separate disabilities separately, even when a compensable disability is distal to the original disability, such as with the wrist and fingers. The primary example respondents cited to support their argument in this regard was the case of White v. Braam Communications and Milwaukee Mutual Insurance Company, WC Claim No. 93009815 (LIRC February 10, 1998). That case involved separate assessments of permanency at the fingers and wrist, which were made by the department without a supporting medical opinion. The physician had combined his assessments of wrist and finger permanency into one assessment at the wrist. The commission awarded permanency based on the physician's opinion, as it is required to do, rather than on the department's assessment. The department was actually correct, from a technical standpoint, in assessing separate disabilities. But the physician's actual assessment of permanency took precedence over the department's interpretation of that assessment. When the commission has credible medical evidence to support the separate assessment of separate, work-related disabilities, it should always uphold that evidence. But where the physicians' opinions do not make a separate assessment, the commission must uphold the most credible of those opinions, even though they may be technically incorrect in their means of assessment.