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


SANDRA FREDRICK, Applicant

RAY-O-VAC, Employer

EMPLOYERS INSURANCE OF WAUSAU, Insurer

WORKER'S COMPENSATION DECISION
Claim No. 1995008731


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 makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employer and insurer (collectively, the respondent) conceded a compensable work injury. The respondent has previously paid $23,530.86 in disability compensation. At issue in this case is the extent of temporary disability from that injury beyond that conceded by the respondent, as well as the respondent's liability for medical expenses.

The applicant was injured on February 2, 1995 when she got her right hand stuck in a machine. An x-ray was normal, though the applicant's hand had some abrasions and swelling. On February 24, 1995, the swelling had diminished, but the applicant began to complain of numbness and tingling of the wrist, hand and shoulder. Because of the neurological complaints, the applicant underwent nerve tests, which were normal. Her treating doctor began to suspect complex regional pain syndrome (CRPS, also sometimes called reflex sympathetic dystrophy), and she was referred to Jeffrey Fitzhum, M.D.

Dr. Fitzhum began treating the applicant in May 1995. He believes she has CRPS. She has tried creams, acupuncture, and a variety of medications. Indeed, she has been on 25 different medications at various times, including Prozac, Clonezepam,
and Dilaudid a morphine-type substance. Although there might be some question as to the effectiveness of the medications used to treat the applicant's condition, all the treatment the applicant has received has been undertaken in good faith to cure and relieve the effects of the work injury.

Dr. Fitzhum and the employer's independent medical examiner, Sridhar Vasudevan, M.D., both offered their expert medical opinions at the hearing.

Dr. Fitzhum opined the applicant has CRPS as the result of the work injury, and that it is disabling her from work. Although he stated in March 1996 that she had reached a healing plateau, Dr. Fitzhum testified at the hearing that her symptoms in fact progressed thereafter to include pain complaints beyond her shoulder and arms, and into her back, buttocks and pelvis. On cross-examination, he testified he had rated permanent disability at the time of the March 1996 healing plateau; his March 5, 1996 note in exhibit B rates permanent partial disability at 40 percent at the shoulder, and 20 percent to the whole body. Dr. Fitzhum's rating of permanent partial disability to the body as a whole was based on a spread of pain into the back and left arm.

Dr. Vasudevan agrees that, after the applicant's "crush" injury at work, she had CRPS in 1995 into early 1996. January 1998 transcript, pages 32 and 36. However, he testified that his examinations of the applicant in April 1996 and March 1997 disclosed no objective evidence of CRPS. January 1998 transcript, page 22. He opined that she had plateaued as of April 1996, with a ten percent permanent partial disability at the wrist for the crush injury itself. January 1998 transcript, pages 25 and 26.

Dr. Vasudevan does acknowledge the applicant's continuing more global complaints of back, buttock, and pelvis and even knee pain. He described the problems as the result of chronic pain syndrome. January 1998 transcript, page 30. He also stated that chronic pain syndrome is not the same as malingering, and that the applicant was not malingering. Transcript, pages 30 and 36. However, he could find no objective basis for the complaints. January 1998 transcript, page 23.

On the other hand, Dr. Vasudevan's testimony is not clear about what did cause the applicant's problem, if not the work injury. At one point, he indicates her "continuing problem" was the result of several factors, including the work injury, continued misuse or nonuse of the injured arm, and inappropriate treatment thereafter. January 1998 transcript, page 48. He also indicated coping mechanisms might explain why a person continues to be disabled, and stating that this occurs often in the absence of financial gain. January 1998 transcript.

The commission credits Dr. Fitzhum's opinion concerning causation, and the extent of temporary disability ending with a March 5, 1996 healing plateau. The applicant had a clear work injury, with continuing and worsening symptoms that did not exist before. Even Dr. Vasudevan attributes the continuing problem, in one way or another, to the initial work injury. Moreover, CRPS is a valid diagnosis, as both Dr. Vasudevan and Dr. Fitzhum explain in their testimonies. Both doctors agree it may occur from work injuries such as the one the applicant suffered, and that her pain symptoms supported the diagnosis. Dr. Vasudevan testified that the applicant may have suffered from the condition prior to April 1996. He offers no real alternative explanation for her continuing symptoms.

In sum, the commission is satisfied that the February 2, 1995 work injury caused the applicant's temporary disability to the March 1996 healing plateau date found by Dr. Fitzhum, as well as the permanent residuals and need for medical treatment thereafter.

The next question is the extent of permanent disability. The applicant brought a claim for temporary disability to the date of the hearing. ALJ Sass expressly limited the issues for hearing to compensation for temporary disability and medical expenses at the beginning of the hearings. May 15, 1997 transcript, page 3; January 13, 1998 transcript, page 5. On this basis, the respondent now contends an award for permanent disability was beyond the scope of the hearing.

After carefully reviewing the record, the commission agrees and notes the Court of Appeals decision in Wright v. LIRC, 210 Wis. 2d 289 (Ct. App., 1997). In that case, Mr. Wright applied for a hearing on temporary disability and medical expense. Following a hearing, an ALJ issued a decision awarding Mr. Wright temporary disability to the date of the hearing and reserving jurisdiction on permanent disability. The commission modified the award to end the payment of temporary disability on a date prior to the hearing, and awarded permanent disability. Holding that the commission lacked authority to try an issue (the extent of permanent disability) not tried before the department or agreed upon by the parties, the Court of Appeals reversed.

The commission acknowledges that the facts in Wright are slightly different than those present here. In Wright, the ALJ expressly reserved jurisdiction on permanent disability. Here, of course, the ALJ did not reserve jurisdiction, but went ahead and awarded permanent disability. However, in both Wright and this case, the evidence in the record on permanent disability was relatively minimal. For example in current case, the applicant's attorney did not even ask Dr. Fitzhum about permanent disability on direct examination, presumably because she was pursuing a claim for continuing temporary disability. Further, in Wright the ALJ stated the issues for the hearing were the "nature and extent of disability" whereas here ALJ Sass expressly limited the issues to compensation for temporary disability and medical expenses at the beginning of the hearings. May 15, 1997 transcript, page 3; January 13, 1998 transcript, page 5. In sum, because the commission concludes the matter of permanent disability was fully litigated and based on the notice concerns expressed by the court of appeals in Wright, the commission declines to award permanent partial disability on this record. Rather, the commission remands the case to the department for further hearing on that issue.

The applicant suffered an injury February 2, 1995, arising out of and occurring while performing services growing out of and incidental to her employment with the employer-respondent. As a result of that injury, she was temporarily totally disabled from February 2 through February 20, 1995, a period of 2 weeks and 2 days at a weekly rate of $261.60, totaling $610.40. She was temporarily partially disabled from February 19, 1995 through August 6, 1995, a period of 24 weeks at a weekly rate of $136.69 totaling $3,280.56. She was again temporarily totally disabled from August 5, 1995 through March 5, 1996, a period of 30 weeks and 2 days at a weekly rate of $261.60 totaling $7,935.20. It appears that this amount has been fully paid by the employer and insurer; any overpayment in temporary disability may be offset against compensation for permanent disability when that is awarded.

The next issue is reimbursement of medical expense. After the hearing, the applicant submitted a form WC-3 that lists substantial charges and shows none to have been paid by the insurer. The insurer, however, filed a document indicating that it has paid substantial amounts for medical treatment and drugs. Because the commission cannot determine the amount of medical expense due and owing by the insurer, this issue, too, is remanded for further action by the department.

This order shall be left interlocutory because the applicant may sustain additional disability from the work injury, and may incur additional treatment expense.

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

INTERLOCUTORY ORDER

The findings and order of the administrative law judge are affirmed in part and reversed in part. This case is remanded to the department for further action as set out in above decision. Jurisdiction is reserved.

Dated and mailed March 31, 1999
fredrsa.wrr : 101 : 5 ND § 8.18 ;  § 8.19

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

cc: ATTORNEY HELEN L SCHOTT
STAFFORD & NEAL SC 

ATTORNEY RAYMOND G CLAUSEN
STILP & COTTON


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