P O BOX 8126, MADISON, WI 53708-8126 (608/266-9850)




Claim No. 91069850

The administrative law judge issued his Findings of Fact and Interlocutory Order in this case on September 13, 1994, following a hearing on August 17, 1994. The applicant 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 $272.80 as of October 15, 1991, and an October 15, 1991 compensable injury. The respondent also conceded and paid temporary total disability from October 16, 1991 to August 20, 1992 in the amount of $8,366.02, and medical expenses totaling about $13,000. The issues are whether applicant's average weekly wage was slightly higher than that conceded by the respondent, and whether the applicant sustained permanent partial disability as a result of work injuries. The commission has carefully reviewed the entire record in this case, including the briefs submitted by the parties. The commission hereby sets aside the Findings of Fact and Order of the administrative law judge and substitutes the following therefor:


The applicant was born on April 27, 1943. She began working for the employer on June 15, 1987, as a certified nursing assistant.

The applicant injured herself at work on at least two occasions. One of these injuries occurred in July 1990 as the applicant turned over a resident. She missed several days of work following the July 1990 injury, but returned to her old duties. According to the applicant, her doctor diagnosed some sort of disc problem at the time.

In fact, her treating doctor for the July 1990 complaint, Lauren Fuller, M.D., noted only persistent mild low back discomfort, with radiation suggesting possible nerve impingement, though more likely only a muscle strain. Several months after the injury the applicant had returned to work without problem, but Dr. Fuller was not willing to certify that the applicant would not have permanent disability from the July 1990 incident. See note for October 9, 1990 (last two pages of Exhibit C.)

The applicant apparently sought no treatment for her back again for another year, or until after another injury on Tuesday, October 15, 1991. The respondent concedes that this injury caused at least some temporary disability. The applicant testified that the back pain continued between the July 1990 and October 1991 injuries, but she learned to live with it.

The October 15, 1991 injury occurred while the applicant was pulling a 206 pound resident, or the resident was pulling on the applicant, apparently to help the resident retain her balance. The applicant testified that the pulling lasted for 5 seconds.

The applicant testified that within a minute of the injury she began experiencing shooting pain down her arm and into her middle and index fingers. She states that moving her arm intensified the pain and that she began to feel as if her whole body was coming apart. She testified particularly to increased pain in her back and leg.

Prior to leaving work on October 15, the applicant completed an accident report. The report did not mention any back or leg complaints, but only an injury to the middle and index fingers of the left hand. The report also contained a diagram to allow the applicant to show the location of the injury on her body. The diagram was marked only on two of the fingers of her left hand. See Exhibit 5.

The applicant reported to work the next day, Wednesday, October 16, 1991, and struggled through her normal duties. The following day, Thursday, was a regularly-scheduled day off work. The applicant could not return to work on Friday, however, and called in to tell the employer.

The applicant first treated with a physician's assistant, D. Kaufman, on October 22, 1991. His note states:

"Mary Ann comes in complaining of the sudden onset of pain in her left forearm, elbow, shoulder and upper neck starting on October 16th [sic] when she was pulling a heavy patient out of a bed and then was jerked forward, with the nursing home resident grabbing her hand and pulling it again. She had some pain initially but the following morning she had more pain and also had numbness in her index and middle finger which has persisted. The shoulder pain[] waxes and wanes, but if she does any type of lifting, moving, etc. it will get worse. She describes this as an aching pain deep [in] her forearm, upper arm. She worked for another day or two and then did not return because she was worried that the pain may get worse."

Physician's assistant Kaufman diagnosed acute left shoulder and arm pain with numbness of index and middle fingers, possibly secondary to radicular symptoms, and could not rule out neck strain. See Exhibit 11.

The applicant saw Mr. Kaufman again on October 29, 1991. This time, he noted a brief reference to back pain during the October 22 visit which he did not record in his note for that day. He described the back problem as starting with the July 1990 incident, and as not real serious but symptomatic. He noted low back pain for 1.5 years, possible sciatica, chronic low back syndrome likely.

Mr. Kaufman went on to describe the applicant's continuing complaints of neck pain, with numbness of the left index and middle fingers. He recommended she remain off work until she saw a neurologist.

The applicant was not able to keep her first appointment with the neurologist because of inclement weather. Instead, she saw her family doctor, Dr. Fuller on November 6, 1991. Dr. Fuller noted the October 15, 1991 work injury, and described the applicant's symptoms as sharp shooting pains, numbness in her left hand and burning sensation in her left fingers. However, the applicant reported that the symptoms were improving, and the doctor opined that she probably had a minor stretch type of injury that would heal completely over time. Exhibit C.

The applicant next saw Dr. Fuller on November 14, 1991. At this point, the doctor noted burning in the applicant's fingers, with some aching going up the applicant's arm, and some slight improvement. The doctor did note an x-ray showing spondylolisthesis and disc narrowing at L5-S1, as well as degenerative changes in the cervical spine. However, the only reference to back or neck pain was a notation of occasional sciatica, which the applicant experienced only upon laying down. Dr. Fuller specifically noted that she could not detect back pain at the time of the November 14 examination.

The applicant saw a neurologist, Wolcott S. Holt, M.D., on November 22, 1991. He was unable to detect any neurological basis for the applicant's complaints, and specifically ruled out cervical radiculopathy. He had "a feeling that the majority of her symptoms were related to overstretch of the ligaments and tendons" and recommended nonsteroidal anti-inflammatories. He diagnosed myofascitis of the right [sic] arm and moderate cervical spondylolysis without radicular symptoms. Exhibit F.

The applicant next saw an orthopedic specialist, Patrick M. Healy, M.D. His treatment note states that the applicant was being seen concerning management of neck and low back injuries. He described the July 1990 and October 15, 1991 injuries, noting continuous back pain since the first. He also described the applicant's pain and numbness in her arm and her increased back and leg pain since the October 15, 1991 injury.

Dr. Healy also noted a pre-existing spondylolisthesis of L5-S1 and degenerative disc disease at several levels of her cervical spine. He stated:

"It would appear to me that this patient has aggravated two pre-existing degenerative conditions with her recent injury. I suspect that she will go on to develop chronic symptoms of pain and perhaps some weakness accompanying the pain. Her overall strength, however, is excellent and I should suspect that she should be able to continue working as a nurses aide.

"I warned her that she will likely have some persistent difficulty, and that if an alternative job without the lifting existed that paid as well, that it would certainly be a preferable approach."

He recommended physical therapy and sent her back to Dr. Fuller.

Dr. Fuller then referred the applicant to physical therapy. In a note from a December 5, 1991 examination, Dr. Fuller diagnosed left arm pain resolving slowly with time, but with no evidence of neurologic injury. She also diagnosed degenerative changes in the spine, putting the applicant at risk for future injury. In her note for December 19, Dr. Fuller diagnosed moderate arthritic changes of the cervical and lumbar spine, which might be getting into mild chronic disability syndrome. She noted that the back pain was improving on January 2, 1992. On December 19, the applicant could flex her back 90 degrees with only moderate pain, but by January 2 she felt no pain doing that exercise.

On January 16, 1992, after noting the applicant could flex her back to 90 degrees without pain, Dr. Fuller opined that her back condition had resolved. She also noted upper trapezius muscle strain began with a fairly small incident, and attributed that to general poor condition. Dr. Fuller did note that the applicant would probably be susceptible to work injury because of the underlying degenerative spine condition.

On February 10, 1992, the applicant complained to Dr. Fuller of left shoulder pain. Dr. Fuller noted numerous subjective complaints with undoubted underlying organic basis. However, she went on to state that "[u]nfortunately I cannot be certain that these are related to her work injury."

Dr. Fuller then referred the applicant to C. M. Counihan, M.D., who saw the applicant on February 26, 1992. He gives a history of arm, shoulder, neck and back pain starting with the October 15, 1991 fall at work. He specifically reports that she denied pain before October 15. After a thorough examination during with he noted numerous tender points in the back and neck, he diagnosed myofascial pain syndrome most consistent with fibromyalgia. However, he did not say what caused the condition and released the applicant back to Dr. Fuller.

On March 3, 1992, the applicant was again seen by Dr. Fuller. She noted Dr. Counihan's diagnosis, and that the applicant had returned to work at least part time. She also noted good range of motion in the applicant's back and that her primary pain now was in the upper left arm.

On May 11, 1992, the applicant saw Dr. Fuller for what was apparently the last time. On this occasion, the doctor noted a variety of pain symptoms including shoulder, arm, back and leg pain. Dr. Fuller could not "elicit any trigger points." She noted a good range of motion in the back, but with complaints of pain at 45 degrees. She diagnosed a sleep disorder, incomplete findings for fibromyalgia, underlying arthritis of the spine, and an unknown component of psychological overlay.

The applicant then began treating with E. E. Martinson, M.D., on referral from Dr. Fuller. Dr. Martinson originally saw the applicant on June 2, 1992, at which time he diagnosed:

1. Intrascapular muscle strain with resulting myofascial pain into left upper extremity with no clinical evidence of radiculopathy.

2. Left lateral epicondylitis contributing to the left upper extremity pain. Although there was no clinical evidence of neuropathy, Dr. Martinson thought it possible "secondary to injury."

3. L5-S1 spondylolisthesis causing low back pain and leg pain. Dr. Martinson opined that there were myofascial components with no overt clinical evidence of radiculopathy or neuropathy.

4. History of fibromyalgia.

5. Possibility of psychological/functional complaints, although Dr. Martinson noted the x-rays showing degenerative changes.

In his report dated July 14, 1992, Dr. Martinson dropped the possible diagnosis of functional complaints, and described the epicondylitis as essentially resolved. He released the applicant to 3 days of work per week, six hours per day with a 25-pound lifting restriction. See reports for July 2 and 14, Exhibit F.

Dr. Martinson apparently last saw the applicant on August 20, 1992. His report notes the applicant's increased neck and back pain with her return to work, including now bilateral arm pain. She told the doctor her pain was increased by cranking beds and sweeping, but stated she had done no heavy lifting. She also reported that her pain increased in severity, but not in character, and her home exercises provided some relief.

Dr. Martinson went on to restate his diagnosis of intrascapular muscle strain with resulting myofascial pain; resolved epicondylitis; L5-S1 spondylolisthesis with resultant low back and lower extremity pain; and fibromyalgia. Significantly, he reported that the myofascial pain, spondylolisthesis and fibromyalgia were all exacerbated by the applicant's return to work.

Dr. Martinson concluded:

"Indicated ... that although there are findings on the work-up performed to date which would be consistent with some degree of pain complaints that patient is registering, that there also appears to be a significant functional component and that I am highly skeptical that her objective problems will be treated successfully in view of this. Indicated that on a long-term basis the patient would be limited in regards to lifting to less than 25 pounds without repetitive trunk movements/positions and repetitive lifting and that she would need allowance for frequent change of position as necessary. Feel that due to the exacerbation which has occurred with this job that at this time we will terminate this position and provide a permanent disability rating for this patient.... Although the Wisconsin Workers' Compensation Guidelines do not provide significant parameters for rating this patient's problems feel that for her neck and back diagnoses permanent partial disability rating of 10 percent is warranted."

Both parties submitted practitioner's reports from medical experts. The applicant offered the report of Dr. Martinson. He generally refers to his notes to support his opinion of work causation of permanent partial disability which he rates at 10 percent, apparently compared to disability to the body as a whole. Dr. Martinson also opines that the work injuries caused the permanent partial disability either directly or by precipitation, aggravation, and acceleration of a pre-existing degenerative condition beyond its normal progression.

The IME is Richard F. Galbraith, M.D. He noted a normal neurologic examination but with many diffuse, non-specific complaints of pain in the upper and lower extremities, back, shoulders, neck and head without any focal or objective neurologic finding to account for them. He states that the symptoms do not fit a diagnostic category, nor would they have arisen from the trauma caused by the October 15, 1991 work injury. He noted that none of the treating doctors offered a conclusive diagnosis relating the disability to the work injury or to any specific pathology. He thus opined that she had no permanent disability and could return to work without restriction.

The primary issue in this case is whether the applicant has established that the work injuries are causally related to her permanent partial disability. Under worker's compensation law, an applicant generally has the burden of proving the facts necessary to support his or her claim. An applicant must produce sufficient evidence so that the commission's decision will not rest on speculation and conjecture. Beem v. Industrial Commission, 244 Wis. 334, 337, 341 (1943) and R.T. Madden Inc., v. Industrial Commission, 43 Wis. 2d 528, 548 (1969). If the commission is left with a legitimate doubt concerning the existence of the facts necessary to establish a claim, it must deny the application for compensation. Leist v. LIRC, 183 Wis. 2d 450, 457 (1994).

The Supreme Court has provided three classifications of work injury by cause to guide the determination of whether a particular condition may be compensated under the worker's compensation law:

" (1) If there is a definite 'breakage' (a letting go, a structural change ...), while the employee is engaged in usual or normal activity on the job, and there is a relationship between the breakage and the effort exerted or motion involved, the injury is compensable regardless of whether or not the employe's condition was preexisting and whether or not there is evidence of prior trouble.

" (2) If the employe is engaged in normal exertive activity but there is no definite 'breakage' or demonstrable physical change occurring at the that time but only a manifestation of a definitely preexisting condition of a progressively deteriorating nature, so that recovery should be denied even if the manifestation or symptomization of the condition became apparent during normal employment activity.

" (3) If the work activity precipitates, aggravates and accelerates beyond normal progression, a progressively deteriorating or degenerative condition, it is an accident causing injury or disease and the applicant should recover even if there is no definite 'breakage.' [Citations and footnotes omitted.]"

Lewellyn v. DILHR, 38 Wis. 2d 43, 58-59 (1968). The commission may not find that a work incident or injury that is simply "in the nature of an aggravation" falls within the third class of injuries stated above. Jos. Schlitz Brewing Co. v. ILHR Department, 67 Wis. 2d 185, 192 (1975).

The applicant has fallen short of meeting her burden of proof in this case, and the commission would have to resort to speculation or guess to conclude that her work injuries caused permanent disability. The applicant has no neurological problems. The most any doctor says is that she has aggravated or exacerbated her pre-existing condition. See November 29, 1991 report of Dr. Healy, Exhibit E and August 20, 1992 report of Dr. Martinson, Exhibits C or F. Her primary care physician, Dr. Fuller, flatly refused to relate her continuing symptoms to work. February 10, 1992 note of Dr. Fuller, Exhibit C. Finally, both Drs. Martinson and Fuller refer to functional problems.

Further, Dr. Martinson's August 20 notes (upon which the opinions in his practitioner's report are based) indicate only that the applicant's symptoms exacerbated her then-recent return to light duty. His notes do not state that the June 1990 or October 1991 work injuries caused the symptoms in the first place or made them permanently worse. It is true Dr. Martinson rates permanent partial disability in his August 20, 1992 opinion. However, he did so only after concluding that since light duty exacerbated her condition, she would not likely improve. That statement is far from opining that permanent disability is actually causally related to work or the work injuries. In short, Dr. Martinson's opinion on work causation given on the face of the practitioner's report is inconsistent not only with that of the other treating practitioners, but also with the very notes to which Martinson refers.

Finally, the commission notes two other points. First, the applicant did not mention the back pain with the work injury when she first reported the October 1991 injury. When she later began associating back pain with the work injury, it was initially only a minor complaint. Second, the applicant eventually began complaining of bilateral arm pain, even though only the left arm was injured in the October 1991 work injury. These observations suggest that the work injuries did not cause progression of the myofascial pain or fibromyalgia, but that instead the applicant's increase in symptoms was simply the normal progression of those conditions unaffected by the work injury. Based on the record in this case, the commission accepts the report and opinion of Dr. Galbraith concerning causation of permanent disability as more credible. The commission is left with legitimate doubt about whether that the work injuries caused the permanent partial disability for which the applicant seeks compensation in her application. It must therefore dismiss her application.

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


The decision of the administrative law judge is modified to conform to the foregoing and, as modified, is affirmed. The application is dismissed.

Dated and mailed March 31, 1995
ND 3.37

Pamela I. Anderson, Chairman

Richard T. Kreul, Commissioner

James R. Meier, Commissioner


The commission carefully read and considered the applicant's brief statement of position dated January 15, 1995 in reaching its decision in this case. However, the commission's review is generally confined to the record from the hearing. Consequently, the commission may not consider any statements of fact made by the applicant in her statement of position which were not also made in her testimony before ALJ Ryan. For this reason, the commission also may not consider the "new evidence" of the applicant's treatment by Dr. Freeman of Superior Neurosurgeons, Ltd., mentioned in her March 12, 1995 letter.

Finally, the commission does not mean to find in this case that the applicant is simply making up the symptoms upon which Dr. Martinson based his rating of permanent disability. Rather, the commission must dismiss the applicant's claim for permanent disability because the record does not support the finding that her residual permanent disability was caused by the work injuries.


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