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

HOLLY EDHOLM, Applicant

POLARIS INDUSTRIES INC, Employer

POLARIS INDUSTRIES INC, Insurer

WORKER'S COMPENSATION DECISION
Claim No. 1997018338

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 applicant, who was born in 1963, claims bilateral carpal tunnel syndrome as an occupational disease. She stapled vinyl covers to snowmobile and all terrain vehicle seats at a rate of 50 seats per hour. The job involved pulling the cover tight with the left hand and attaching staples with the right hand. The job was highly repetitive; for example, there are more than 200 staples in half of the seat for an all terrain vehicle. The applicant worked under pressure to meet a production quota.

The applicant first noted problems, specifically numbness in her hands, in 1995. She began treating for the condition. Ultimately, Richard G. Strate, M.D., performed carpal tunnel surgery on the left wrist on March 6, 1997, and on the right wrist on May 29, 1997.

Because the respondent concedes that the applicant suffered a compensable injury, the only issues at hearing were the nature and extent of disability beyond that conceded, and liability for certain medical expense. Specifically, the case involves the extent of permanent disability, and a $270 medical treatment bill.

The record contains permanent partial disability ratings from two sources.

The applicant's family doctor, Paul Sletten, M.D., opined that the applicant reached a healing plateau without permanent disability on July 22, 1997. However, he also acknowledged she had chronic symptoms of pain and stiffness, which could require him to impose significant work restrictions if she was not evaluated by an occupational health physician. Exhibit 1.

Shortly after Dr. Sletten gave that opinion, the applicant was evaluated by occupational health specialists, Peter Badroos, M.D., and Beth Baker, M.D. See exhibits J and K. They opined:

"The patient has bilateral carpal tunnel syndrome and is status post bilateral carpal tunnel release and she still has sensory loss and decreased power grasp over both hands. She suggest[ed] she not do any stapling at her job. Her PPD rating under Wisconsin's administrative code would be rated as 0% because she has normal range of motion at the elbow, wrist and hand. She has reached maximum medical improvement for this injury. Ms. Edholm does not have total sensory loss in her hands so she is not ratable under the sensory exam portion of the Wisconsin code. The patient does have persistent sensation over the palmar aspect of both hands following the median nerve distribution and also has decreased grip strength over both hands. Using page 11 for Wisconsin Worker's Compensation Guidelines they mentioned that it is virtually impossible to develop guidelines that will cover in whole or in part every considerable [sic] condition. In those situations not covered, physicians must rely on professional judgment.

"We argue that Wisconsin Worker's Compensation Guidelines especially for this patient does not allow adequate assessment of her disability or impairment and it would be preferable to use the American Medical Association Guides for evaluation of permanent impairment. Using the American Medical Association Guidelines which shows on page 3/57 Table 16 upper extremity impairment due to entrapment neuropathy of the median nerve at the wrist, the patient will have a mild degree of severity of the upper extremity and permanency. The patient will have a 10% PPD per arm or a 12% disability of the whole body...."

Exhibit K, report dated November 18, 1997, pages 3-4.

The applicant testified she has continuing wrist problems. She has cramps and numbness in her fingers, making it difficult to open jars or use a can opener. Her hands go numb when she uses a vacuum.

The commission acknowledges that family doctor Sletten flatly says the applicant has no permanent disability. On the other hand, he does note her chronic pain and stiffness in his October 22, 1997 note. Significantly, her pain is in the hands only; Drs. Badroos and Baker noted the absence of symptoms above the wrists. They also note, however, numbness, loss of sensation to heat and cold, pain, and decreased grip strength in both hands.

The commission concludes that an award for permanent partial disability comparable to amputation of the hand at the wrist is appropriate based on these symptoms. It is true that the percentages given in the evaluation pamphlet provided to doctors (1) who rate disability in workers compensation cases are tied to loss of motion. However, the pamphlet also indicates that moderate pain, loss of strength, loss of endurance, and loss of sensation and sensitivity may be considered in determining physical impairment. The pamphlet also recognizes that guidelines are only starting points, and that if other elements of disability are present, an allowance of impairment is appropriate. The pamphlet states that a doctor may consult and consider the AMA standards, though the permanent partial disability rating must be based on the Wisconsin standards. Essentially, the Wisconsin standard permits interpolation of a rating based on a doctor's professional judgment.

In addition, the commission has previously rated permanent partial disability after carpal tunnel surgery based on pain, loss of grip strength and loss of sensation or endurance. (2) Loss of motion is not an absolute necessity to support a rating for permanent disability following a carpal tunnel surgery. What is necessary is some loss of function that affects a workers ability to engage in gainful activity. (3)

In this case, the applicant has residual pain, loss of sensation, and loss of grip strength. The record establishes compensable permanent disability; Dr. Sletten's conclusion to the contrary must be disregarded. However, the functional impairment noted by Drs. Badroos and Baker does not justify a rating of 10 percent compared to loss of the use at the wrist, and certainly not a rating of 10 percent comparable to amputation of the arm at the shoulder. The commission concludes an award of two percent permanent partial disability at each wrist is supported by the evidence. This assessment is between the ratings proffered by the physicians.

Permanent disability at two percent comparable to loss of a hand at a wrist is compensable by eight weeks of permanent partial disability. Applying the multiple injury multiplier under Wis. Stat. § 102.53(4), the applicant is entitled to a total of 17.6 weeks of permanent partial disability for her bilateral injury. At the weekly rate of $173.63 (two-thirds of her conceded average weekly wage of $260.44), this works out to a total award of $3,055.83, all of which has accrued.

The applicant agreed to payment of an attorney fee, set at twenty percent on the additional disability award under this order, under Wis. Stat. § 102.26. The fee equals $611.17, which shall be deducted from the total amount awarded hereunder and paid to the applicant within 30 days. The remainder, $2,444.66, shall be paid to the applicant within 30 days.

The bill for services by Drs. Baker and Badroos, although on referral from Dr. Sletten, was not for services to cure and relieve the effects of the work injury. Rather, the doctors provided the services to provide an opinion necessary to take this case to hearing. Consequently, that item of expense shall not be ordered paid.

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

ORDER

The findings and order of the administrative law judge are modified to conform to the foregoing and, as modified, are affirmed in part and reversed in part.

Within 30 days from the date of this Order, the employer and its insurer shall pay all of the following:

1. To the applicant, Holly Edholm, Two thousand four hundred forty-four dollars and sixty-six cents ($2,444.66) in disability compensation.

2. To the applicant's attorney, David M. Erpsamer, Six hundred eleven dollars and seventeen cents ($611.17) as attorney fees.

Dated and mailed March 31, 1999
edholmh.wrr : 101 : 5  ND § 5.24;  § 5.18

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

James A. Rutkowski, Commissioner

MEMORANDUM OPINION

The commission did not confer with the presiding ALJ concerning witness credibility and demeanor because its modification of his decision did not rest on a different impression of the credibility of any 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 testimony concerning her residual symptoms and limitations. However, for the reasons stated above, the commission cannot simply adopt the disability ratings of any of the medical experts, none of whom testified at the hearing.

cc: ATTORNEY BRADLEY C LUNDEEN

ATTORNEY DAVID M ERSPAMER

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Footnotes:

(1)( Back ) See "How to Evaluate Permanent Disability under Wisconsin's Worker's Compensation Law," WKC-7761/P (Rev., 10/97).

(2)( Back ) See, for example, Gene Blaser v. Country Club of Beloit, WC case no. 199605228 (July 29, 1998).

(3)( Back ) How to Evaluate Permanent Disability under Wisconsin's Worker's Compensation Law, supra, page 2.4