STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION
P O BOX 8126, MADISON, WI 53708-8126 (608/266-9850)
HOLLY J HAYES, Applicant
K MART CORP, Employer
BUILDERS SQUARE INC, Insurer
WORKER'S COMPENSATION DECISION
Claim No. 1995-066419
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 as its own, except that it makes the following modifications:
1. Delete the last sentence of the sixth paragraph of the ALJ's Findings of Fact.
2. Add as the second sentence of the sixth paragraph of the ALJ's Findings of Fact "Her later elbow pain began, as applicant herself reported, in July of 1996 and to the extent such complaints were related to her cervical problems, the same were not related to her work activities."
ORDER
The findings and order of the administrative law judge, as modified, are affirmed.
Dated and mailed June 3, 1999
hayesho.wmd : 132 : 1 ND § 3.31 § 8.17
/s/ David B. Falstad, Chairman
/s/ Pamela I. Anderson, Commissioner
/s/ James A. Rutkowski, Commissioner
MEMORANDUM OPINION
The applicant has petitioned for commission review of the adverse findings and order of the administrative law judge. The applicant maintains that she injured her neck in the September 28, 1995 work incident. Applicant maintains that she reported her neck problems to Dr. Cromer when she sought treatment the day after the incident. However, there is no indication in Dr. Cromer's notes that she mentioned a neck injury and she received no treatment for a neck injury. Further, Dr. Cromer's October 31, 1995 treatment note listed four problems that were being addressed. None of those problems mentioned applicant's neck or any symptoms that would be associated with applicant's neck. Indeed, specific problems listed were right elbow problems, "the same old chest pain," applicant's difficulty in eating, and her crying and constant headaches. Dr. Cromer also noted that applicant was quite depressed. Dr. Cromer was not, as applicant suggests, focusing on applicant's "main" complaint. Dr. Cromer was in fact acknowledging all the complaints applicant was advancing, and perhaps some she was not, but did not indicate any complaint or problem related to applicant's neck.
Applicant was treated for a myriad of complaints. Applicant's medical complaints and her treatment prior to treating with Dr. Davis and Dr. Szmanda did not address any alleged neck problems. The MRI findings in October of 1996 indicating a disc protrusion at C6-7, when compared with her lack of other complaints about neck pain following the injury, lead the commission to conclude that any cervical problems were not related to the September 20, 1995 work injury.
Applicant maintains that her cervical disc problems are related to work activity she performed in the fall of 1996. While applicant attributes her cervical disc problems to her work activity, the medical notes do not indicate such a relationship. It is curious that applicant did not recall any overuse or injury at work to which to attribute her injuries when she initially sought treatment in August of 1996, but was able to do so later. Further, while applicant relates her fall of 1996 bilateral elbow and cervical complaints to her position as stock replenishment clerk in August of 1996, her statements to Dr. Davis and Dr. Cromer would place the onset of elbow problems in July. Applicant's medical records indicate an individual with a myriad of medical problems that both predate the alleged work injuries and postdate those injuries. Applicant's doctors have noted that applicant has basically classic signs of depression, that her symptomology is ever changing, and that there are ongoing concerns with applicant's long-standing use of narcotics.
The applicant states in her brief that Administrative Law Judge Clarke appeared at the hearing unshaven. While a clean-shaven face perhaps reflects more attention to one's appearance, an unshaven face does not negatively reflect on the ALJ's handling of the hearing or decision. The applicant also notes that the ALJ mentioned he was a friend of the insurance agency lawyer's father. However, merely noting a familiarity with one side does not indicate bias. Finally, the commission notes that it conducts an independent review of the record and, after doing so, agrees with the ALJ's findings and order, as modified.
cc: ATTORNEY MICHAEL J STINGL
SEIDL & STINGL SC
ATTORNEY PETER C BREHM
EVERSON WHITNEY EVERSON & BREHM SC
Appealed to Circuit Court. Affirmed. Appealed to the Court of Appeals. Affirmed in unpublished decision, February 27, 2001.
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