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


CARRIE WILLIAMS, Applicant

CARDINAL INSULATED GLASS, Employer

AMERICAN MOTORISTS INS CO, Insurer

WORKER'S COMPENSATION DECISION
Claim No. 1996046744


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: December 4, 1998
williac . wsd : 101 : 3 ND § 3.4

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

1. Posture.

The applicant alleges disability from a bilateral elbow condition from repetitive duties at work. The applicant's duties, shown in a videotape exhibit, involve the fabrication of the relatively light stainless steel or aluminum stock into frames. None of the applicant's duties involved working with glass, or with the frames once the glass is installed. However, the duties are repetitive, relatively fast-paced, and involve frequent bending of both the wrist and elbow.

The ALJ found that the applicant's work activities were a material contributory factor in the onset or progression of her disabling bilateral arm condition. She noted that the applicant's condition may have been contributed to in some part by her pregnancy, but that an employer takes its employes as they are. (1) She also noted that the applicant's arm problems continued, and in some respects worsened even after the pregnancy. Further, she noted that the applicant's work was very repetitive and that Drs. Erickson, Meythaler, Berry, Bihn, and Nelson, in some degree, all agreed that work was a contributing factor.

However, the ALJ did not accept chiropractor Nelson's permanent partial disability ratings at 7 percent (right arm) and six percent (left arm) "at the elbow compared to the body as a whole" at face value. Nonetheless, she was persuaded that the applicant did in fact have some permanent disability at the elbows based on her credible chronic complaints. Consequently, she subtracted five percent from each rating and awarded compensation based on minimal two percent and one percent ratings at the right and left elbows respectively. See Wis. Stat. § 102.18(1)(d).

The ALJ also declined to award any unscheduled permanent disability. On this point, she noted that the claim for unscheduled disability was based on Dr. Meythaler's February 24, 1997 note, but that the applicant ceased treating with Dr. Meythaler after that point. She also noted that most of the applicant's complaints were in her forearms (a scheduled part), and most often diagnosed as epicondylitis. She also noted that after the applicant stopped treating with Dr. Meythaler, she told Dr. Berry her symptoms were mostly in her arms. (2)

Both sides appeal. The employer and the insurer (collectively, the respondent) assert that the applicant did not sustain an injury arising out of employment. The applicant wants a higher award for permanent disability.

2. Discussion.

The respondent first points out that when the applicant's symptoms first developed, she was only working part-time, essentially three or four days per week of eight-hour shifts, because of her pregnancy. On this point, the respondent asserts that while the applicant's doctors may have understood the applicant worked eight-hour days, it is not clear they knew she worked a three- or four-day week. The respondent also asserts none of the treating physicians knew her work duties were as light as they were since none of them reviewed the videotape. The respondent thus contends that the opinions of the treating doctors must be rejected as based on a flawed history.

However, while the videotape showed light work in terms of lifting, it also showed highly repetitive work. In addition, the respondent's independent medical examiner, Dr. Davey, did not opine that the work could not cause bilateral arm problems. Rather, he states the applicant had no arm problems, and so could do the work. Further, none of the doctors who opined that the applicant's work caused her condition, to the commission's knowledge, expressly based his opinion on assumption that the applicant was working a forty-hour week when her symptoms started. Dr. Erickson did note an eight hour day, but of course that was accurate. Nor did Dr. Davey opine that the number of weekly hours made a material difference. In addition, of course, the applicant had worked alternating 36- and 48-hour weeks earlier in her employment.

The respondent also notes the applicant's prior medical problems such as a childhood left wrist injury, hypoglycemia, family stress, and postural and biomechanical difficulties. Again, however, employers take their employes as they are. Moreover, none of the medical experts gave any causative weight to the prior problems.

The respondent also suggests the applicant's problems are not compensable because they have not been consistently diagnosed or consistently treated. However, uniformity among treating doctors to either diagnosis or treatment is not required for a claim to be compensable. All that is necessary is for a work accident or work exposure to cause an injury resulting in disability or the need for treatment. Saymporim Ostrum v. Ore Ida Foods Inc., WC case no. 89024090 (LIRC, June 1, 1995), aff'd sub nom. Ostrum v. LIRC, case no. 96-0621 (Wis. Ct. App., October 16, 1997). See also: Wis. Stat. § 102.03. The treating doctors all agree that work activity or exposure was at least a material contributory factor in the onset or progression of the applicant's disabling condition.

Although the diagnoses are not entirely consistent, when all is said and done, the applicant's complaints were: bilateral pain in the arms made worse by repetitive activity. Further, Drs. Meythaler and Erickson specifically rejected the possibility of malingering. Malingering or symptom exaggeration is also inconsistent with Dr. Erickson's May 30, 1997 note indicating that the applicant was pressing him for reduced work restrictions. Thus, while in some cases disagreement among treating doctors on diagnosis might lead one to question the credibility of an applicant's subjective complaints (and expert medical opinions based on those complaints), this case does not pose that problem. In sum, despite the question as to the precise diagnosis, the applicant has met her burden of eliminating legitimate doubt on the elements necessary to prove her claim.

On the other hand, the commission sees little reason to increase the permanent disability award as the applicant requests. Dr. Erickson's ratings are confusing and seem to mix elements of scheduled and unscheduled disability for what is clearly a scheduled injury. Given the applicant's burden of proof, the commission is satisfied that the ALJ reasonably and correctly rated permanent disability at one and two percent compared to amputation of the arms at the elbow.


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Footnotes:

(1)( Back ) Semons Department Store v. DILHR, 50 Wis. 2d 518 (1971). Pregnancy is recognized as an "as is" condition. Karla Mitchell v. IT W Deltar, WC case no. 96001304 (LIRC, October 30, 1997), aff'd sub nom. ITW Deltar v. LIRC, case no. 97 CV 358 (Wis. Cir. Ct. Chippewa County, August 27, 1998).

(2)( Back ) The ALJ awarded temporary total and temporary partial disability for various periods to May 15, 1997 (when she returned to work full time prior to her discharge). The ALJ did not pay temporary disability while the applicant was on maternity leave. In any event, there is no dispute about how the temporary disability benefits were calculated.