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

RICHARD LEE CARADINE, Applicant

WALKER FORGE, INC , Employer

FIREMANS FUND INSURANCE COMPANY OF WI, Insurer

WORKER'S COMPENSATION DECISION
Claim No. 1988011565

An administrative law judge (ALJ) for the Worker's Compensation Division of the Department of Workforce Development held a hearing in this matter. Prior to the hearing, the employer and insurer (collectively, the respondent) conceded jurisdictional facts, a maximum wage for the purposes of calculating disability compensation, and an injury arising out of employment while performing services growing out of or incidental to employment. At issue were the nature and extent of disability beyond that conceded, and liability of medical expenses.

The ALJ issued a decision in the applicant's favor. The respondent filed a timely petition for review.

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 applicant, who was born in 1942, worked for the employer from 1968 to 1992. He was a hammer man running a forge hammer. His job required using his left foot to operate a foot pedal. The work exposed the applicant to occasional burns from molten metal at a temperature of 2300 degrees. The molten metal would burn through the applicant's jeans, go down to his shoe and burn his ankle. The applicant required medical treatment for the burns on a number of occasions.

A note from June 26, 1986 shows treatment with family doctor A.J. Schleper, who reported a dime-sized burn on the medial aspect of the left ankle. Because the applicant's shoe rubbed on the burn site, Dr. Schleper took the applicant off work. The doctor applied a dressing, and noted an Unna Boot (1) might be necessary in time. The doctor also noted rather large varicosities above the burn.

When the applicant failed to heal, R.W. Malinkowski, M.D., applied an ointment and an Unna Boot on July 15, 1986. The doctor noted stasis (2) dermatitis, varicose veins, and swelling about the ankle. He noted also this was the second time the applicant's ankle had been burned.

By July 23, 1986, the applicant's burn had improved. On August 5, 1986, P.J. Bartzen, M.D., described the "ulcer" as completely healed except for a pin point area. The applicant was released to work with instructions to protect the area and wear thick socks.

The applicant burned his leg again in February 1988. Dr. Schleper's initial note from February 5, 1988 describes a second or third degree burn at the dorsomedial aspect of the ankle. This would be at or very near the prior burn site, which is described as occurring at the medial dorsum. The burn had occurred about February 1, 1988, but the applicant did not have trouble with it until shoe rubbing caused it to bleed. The doctor described the burn wound as lying right over large varicosities.

During the course of treatment, the applicant also treated for a lateral knee burn. Eventually, with the application of silvadene dressing, both burn wounds improved. An Unna boot was applied in late February 1988, though the applicant could not return to work because he could not get workshoes over the boot. He was pronounced healed and released to work on March 14, 1988.

According to the respondent's independent medical examiner, the applicant saw a surgeon in May 1989 about his long-standing history of varicose veins. No ulcer or open wound was noted at the time, but the surgeon recommended a varicose vein surgery. In February 1991, the first of what turned out to be a series of ulcers or sores over the medial aspect of the left leg was noted. Another slight break in the skin was noted in the vicinity of the ankle in November 1991. A test performed at this time showed incompetent valves in the deep veins of the leg. The November 1991 break in the skin healed by December 1991, but in January of 1992 a small ulcer of the lateral (3) aspect of the left ankle was noted and eventually healed. See Exhibit 2, IME Zupnik's October 1996 report, pages 2 and 3.

In 1992, the applicant had stopped working for the employer and became self- employed as a dry cleaner.

On October 6, 1994, the applicant was treated for what the doctor described as a pressure sore on his left ankle. A blood sugar test was done, and it showed an elevated reading of 286, indicative of diabetes. The treating doctor, R.E. Schulgit, M.D., prescribed Glucotrol (an oral diabetes medication), and recommended dietary control of the condition.

On follow-up on October 12, 1994, the doctor noted no reaction to the medication because the applicant's blood sugar level was 271. The doctor reported "stasis changes secondary to his diabetes" and noted further control was needed. Accordingly, the doctor increased the Glucotrol prescription, and applied another Unna boot. He also instructed the applicant with respect to the care of the wound.

The applicant was checked weekly in October 1994 for what Dr. Schulgit described as a pressure sore, noting that the applicant was not complying with instructions to keep the foot elevated so he could tend to his dry cleaning business. Eventually, though, the applicant's foot began to heal, and the doctor stressed compliance with instructions regarding keeping the foot elevated. The doctor pronounced the wound healed on November 29, 1994.

In August 1995, the doctor noted the applicant had achieved control of his blood sugar level, which was at 93. In fact, a combination of dietary control and the oral Glucotrol led to hyperglycemic episodes.

Thereafter, on October 30, 1995, the applicant presented with another sore, which Dr. Schulgit described as a medial pressure stasis ulcer left lower leg." Exhibit B. An Unna boot again was applied. The doctor noted on both October 30 and in a follow-up visit on November 6, 1995 that the applicant attributed the condition to his chronic burns while working for the employer.

On January 30, 1996, Dr. Schulgit noted the applicant's ulcer appeared healed. However, an elevated blood sugar level of 254 (it had been 245 the prior week when he treated for a salivary gland infection) troubled the doctor. The applicant was put back on Glucotrol.

The applicant's foot sore or ulcer returned in April 1996. At this point, his blood sugar level was 225. On this occasion, Dr. Schulgit wrote:

"Patient has had peripheral arteriole vascular disease which he related to repetitive burning. He was laying on his left ankle on steel at work in the past. Some early stasis changes are noted on the left ankle. These presentations if left untreated have lead to a frank ulceration.."

Exhibit B, page 23, Schulgit note for April 15, 1996. The applicant's medial malleolus pressure sore healed by May 20, 1996, though Dr. Schulgit noted on several occasions that the applicant had difficulty complying with the instruction that he keep his foot elevated to aid healing.

The left medial sore recurred in October 1996, which again slowly healed by November 1996 with the application of the Unna boot. The left medial ankle sore recurred in April 1997. On this occasion, Dr. Schulgit referred the applicant to a specialist, Dr. Sweet, for evaluation and consultation.

Dr. Sweet saw the applicant on April 14, 1997. The applicant reported chronic ulceration of the right [sic] lower leg. He told the doctor he suffered several burns while working for the employer, and had recurrent ulceration in the area affected by the burn. The applicant stated the ankle would be all right for three or four months at a time, but then break down again.

Dr. Sweet diagnosed chronic ulcerated lower leg. He did not recommend a skin graft, however, and opined that Dr. Schulgit was providing excellent care with the Unna boots.

Meanwhile, the applicant's most recent sore was healing well with the application of the Unna boot. His blood sugar level was elevated, however, with readings in the 300 to 400 range. By May 12, 1997, his blood sugar was back down to 195, and the sore was healed.

The pressure sore recurred in November 1997. However, on this occasion, it was described as being in the left lateral side. This would place it on the other side of his ankle from most of the previous sores and all of the 1980s burns. The sore was fully healed by December 11, 1997.

The applicant fills in some details with his testimony. He acknowledges that the last burn was in 1988, that all of his treatment was at All Saints Medical Groups, and that the November 1997 sore was indeed at the lateral side of the ankle. He testified he has never had a pressure sore on the right ankle.

The primary question in this case is whether the conceded injuries from the molten metal burns at work are causally-related to the applicant's chronic ulcerations on his left leg. The file contains expert medical opinion from two sources on this issue.

Treating doctor Schulgit reported on December 20, 1996 that the applicant had flash and molten metal burns of the medial aspect of his left leg while working for the employer. Each burn healed after a period of one month. Since then, the doctor reported, the applicant has had recurring ulcerations on the medial aspect of the left ankle in the area of his previous burns. The doctor opined that the burns the applicant sustained while working for the employer resulted in a condition in which such ulcerations can be expected on a chronic basis.

Dr. Schulgit went on to opine that an accident or work exposure caused a disability, directly and by occupational disease. He rated permanent partial disability at 5 percent to the whole body for recurrent stasis ulcerations medial malleolus, of the left lower extremity. He expected future recurrences requiring future applications of the Unna boot.

The respondent relies on the opinion of its independent medical examiner, Gerald Zupnik, M.D. He accurately notes that the overall medical issue was the relationship of the applicant's recurrent stasis ulcers to a previous history of burn wounds.

In his July 31, 1998 report, IME Zupnik notes that the applicant had problems in 1989 and 1991, which included venous insufficiency, massive swelling, varicosities, the incompetence of the deep veins, and the slight break in 1991 which all portended the eventual development of an ulcer. He reported that the development of ulcers in this case was aided by a history of varicose veins going back to the applicant's twenties, and his development of diabetes as an adult. He explained that ulcers more frequently occur over the medial aspect of the ankle for physiological reasons related to the preponderance of venous stasis changes on that side. However, Dr. Zupnik continued, stasis ulcers can and do develop on the lateral aspect of the leg (as seems to have been the case here on two occasions.) He opined that while no ulcers had yet occurred on the right ankle, they probably eventually would because the applicant had venous insufficiency there, as well.

The doctor concluded:

"This unfortunate gentleman has ample reason for the development of recurrent ulcerations in this left lower leg as the result of his long- standing chronic and obviously severe venous stasis disease. I cannot correlate the relationship between burn wounds which invariably healed quite rapidly with the development of stasis ulcers, the first of which appeared three years after the last burn episode. If the burns would have sufficiently devitalized the skin to result in ulceration actual stasis ulceration would have developed much sooner. A review of the records showing numerous physician visits during these intervening years shows no evidence of any ulceration until that three year lapse.

"I remain of the opinion, as expressed in my evaluation report of October, 1996, that in all medical probability his stasis ulcers are related solely to his severe venous stasis changes and they are no relationship to a history of burns. The ulcerations are the result of inadequate nourishment to the skin due to the venous engorgement and subsequently the diabetes related-arterial disease.

"Unfortunately and as can also be anticipated, [the applicant] continued to suffer recurrent ulcerations to his left leg even after I had seen him, in April, 1997 this having occurred seemingly in the process of "taking a soak" to his left leg. It involved the medial area. In November 1997 he suffered ulceration over the lateral aspect of that ankle. Both of these fortunately healed up again within a period of one month. Just as in the past, these are the expression of his disturbed venous and arterial circulation."

Exhibit 1, report of Zupnik, pages 2 and 3.

The commission finds the report of Dr. Zupnik more credible in this case for three reasons. First, the applicant was predisposed to stasis ulcers as a result of varicose veins (which indicates an underlying vascular problem) and diabetes (which causes underlying vascular problems). Second, the first ulceration did not occur until 3 years after the last burn. Third, the ulcerations occurred on both the medial and lateral sides of the ankle, while the burns were only on the medial side of the ankle.

If this were just a case where the diabetes and varicose veins indicated a pre- existing predisposition to stasis ulcers, the applicant's injury might well have been compensable under the "as is" rule that applies in Wisconsin worker's compensation cases. Obviously, if the cause were some underlying vascular problem not related to the work injuries, one might expect right leg ulcers, too. Taking the diabetes and varicose veins as constants, what is the difference between the right leg (which is not affected by the ulcers) and the left leg (which is)? The answer could well have been the four to six serious burns the applicant suffered at work. IME Zupnik even admits that burns could cause a devitalization of the skin which, like the underlying venous insufficiency, could cause the ulcers. If the commission were able to conclude that the burns and underlying venous insufficiency working in tandem caused the ulcerations, they would remain compensable. (4)

However, the commission cannot make that finding in this case. The fact remains that the ulcers did not start until three years after the last burn. Dr. Schulgit does not counter Dr. Zupnik's statement that that is just too long.

Most significantly, though, the ulcerations were noted on both the lateral and medial sides of the leg while the burns were only on the medial side. Indeed, one might wonder whether Dr. Schulgit was even aware of any lateral-side ulcerations when he rendered his opinion. Dr. Schulgit seemingly did not know of the January 1992 left lateral ulcer described by Dr. Zupnik on page 3 of his October 1996 IME report. Further, Dr. Schulgit gave his expert opinion in December 1996 (exhibit A) before the November 1997 left lateral ulceration occurred.

Finally, even Dr. Schulgit at one point described the stasis changes in the leg as simply "secondary to diabetes." Exhibit B, note for October 12, 1994. Only after the applicant himself began associating the problem to the burns did Dr. Schulgit come to the opinion that the burns and the recurrent ulcerations were related.

In sum, the commission concludes that the conceded work injuries did not cause the disability or medical expense now at issue. The application must therefore be dismissed.

ORDER

The findings and order of the administrative law judge are reversed. The application is dismissed.

Dated and mailed March 31, 1999
caradir.wrr : 101 : 5 ND § 3.37

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

The commission did not confer with the administrative law judge who presided at the hearing, because the commission does not base its reversal on the credibility of the applicant who was the only witness who testified before the ALJ. Transamerica Ins. Co. v. ILHR Department, 54 Wis. 2d 272, 283-84 (1972). Indeed, the commission credits the applicant's hearing testimony. Rather, the commission reversed based on a different view of the credibility of the medical experts, neither of whom testified before the ALJ.

cc: ATTORNEY EDWARD J BRUNER JR
BRUNER & CHIAPETE SC

ATTORNEY JOHN C POSSI
MUELLER GOSS & POSSI SC

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Footnotes:

(1)( Back ) An "Unna's paste boot" is a dressing for varicose ulcers made of a paste, which is covered with a spiral bandage, and again covered with paste, in repeated layers, to obtain rigidity. Dorland's Illustrated Medical Dictionary, (26th ed. 1981).

(2)( Back ) "Stasis" in this context means a condition caused by the stoppage of the flow of blood. Thus, stasis dermatitis is a skin problem caused by insufficient blood flow.

(3)( Back )  The medial part of a leg is the "inside side;" that is, the side facing the other leg. The lateral aspect is the "outside side."

(4)( Back ) If work activity precipitates disability, even though that disability would not have been caused in the absence of congenital weakness, the disability may be compensable. E.F. Brewer v. ILHR Dept., 82 Wis. 2d 634, 638 (1978).