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

ROBERT AWE, Applicant

WESTERN METAL SPECIALTY, Employer

HOME INSURANCE CO, Insurer

WORKER'S COMPENSATION DECISION
Claim Nos. 1992071334, 1995035844

A hearing was held in his case before an administrative law judge for the Worker's Compensation Division of the Department of Workforce Development on October 5, 1998. Prior to the hearing, the employer and insurer (collectively, the respondent) conceded jurisdictional facts and an average weekly wage of $429.60.

In addition, the respondent conceded a compensable right shoulder injury on October 3, 1992, resulting in various periods of temporary disability through November 17, 1996, and permanent disability at 7 percent compared to loss of the arm at the shoulder (though the respondent in fact paid $8,372 on a claimed erroneous rating of 11.5 percent). The respondent also conceded a compensable left shoulder injury on April 8, 1995, resulting in various periods of temporary disability through February 11, 1995, and permanent disability at 5 percent compared to loss of the arm at the shoulder payment (paid at $4,100).

The issues before the administrative law judge, and now before the commission, included the nature and extent of disability beyond that conceded. Liability for certain medical expenses was also at issue.

The administrative law judge issued his findings of fact and interlocutory order in this case on December 29, 1998. The respondent submitted a timely petition for commission review of the administrative law judge's findings and order. Thereafter, both the respondent and the applicant submitted briefs.

The commission has carefully reviewed the entire record in this case, including the briefs submitted by the parties. Having done so, the commission sets aside his findings of fact and order, and substitutes the following therefor:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The applicant, who was born in 1943, has been employed with the employer since 1964. For most of that time, he worked as a sheet metal worker.

In June 1992, the applicant reached a healing plateau with respect to a right elbow injury that occurred in 1991. He was assigned permanent partial disability at 5 percent compared to loss of the arm at the elbow for that injury. The elbow injury is not at issue here, at least directly.

In October 1992, while working as a sheet metal worker, the applicant hurt his right shoulder. The injury occurred when he was trying to crush or break up a die manually, evidently with the wrong type of set up. An arthrogram showed a rotator cuff tear; Mark M. Benson performed corrective surgery in November 1992.

In July 1993, the employer's independent medical examiner, Michael C. Collopy, M.D., rated a 7 percent permanent partial disability compared to amputation for the right shoulder. Nonetheless, the applicant continued to treat for both the right shoulder and right elbow injuries into 1995.

In April 1995, the applicant experienced a tear in his left shoulder while putting a 30-pound part in a machine. James W. Stone, M.D., did an arthrogram, found a rotator cuff tear, and did left rotator cuff repair in July 1995.

The applicant also complained to Dr. Stone about his continuing right arm pain. Consequently, the doctor did some testing, found that there was still a tear in the right arm, and repaired it surgically in January 1996.

According to the applicant's testimony, he has lost quite a bit of strength in his left arm and the ability to move it fast. Transcript, page 15, 17. He also experiences pain that increases with use, and estimates he can no longer lift more than 25 pounds with his left arm.

Regarding his right arm, the applicant describes limited function and lots of pain. Transcript, page 19. Some of the pain, particularly in the fingers, seems to be from the right elbow problem not at issue here. The applicant also testifies that it requires major efforts to move his arm, and that he gets pain in his neck from use of the arm (this would not be related to the elbow). Transcript, page 20. His strength has improved since the second right arm surgery, but he estimates he can only lift 10 pounds with his left arm.

Based on Dr. Stone's work restrictions and the employer's work load, the applicant was assigned forklift driving after the second right arm surgery. He testified that the restrictions keep him from obtaining heavier, but more skilled work.

Dr. Stone restricts the applicant to a ten-pound maximum lift, no power tools, no overhead activities, and an eight-hour day. See exhibit J, report dated December 19, 1996. The applicant testified that Dr. Stone told him the restrictions apply to both arms. Transcript, page 30. (1)

Dr. Stone also estimated left shoulder permanent partial disability at between 10 and 20 percent compared to amputation (exhibit 1, letter dated November 29, 1996), and right shoulder permanent partial disability at 20 percent compared to amputation (exhibit L, report dated January 28, 1997.) It is evident from both Dr. Stone's treatment notes in exhibit D, and his practitioner's reports at exhibit J through M that the applicant has little restriction in range of motion. Instead, Dr. Stone's disability rating is based on loss of strength as well as fatigue. Exhibit L, report of January 28, 1997.

The employer relies on the reports of Michael Collopy, M.D. In his initial report regarding the right arm in July 1993, Dr. Collopy noted there were not a lot of findings to support complaints of pain. The applicant did not have wasting of the upper girdle; however, Dr. Collopy did observe "down-riding" of the biceps tendon, which the commission assumes supports the applicant's pain complaints. Dr. Collopy rated permanent partial disability at 7 percent with restrictions against overhead lifting and a fifty-pound lifting restriction.

Dr. Collopy re-examined the applicant on November 20, 1996. He reiterated his 7 percent right shoulder rating, and assigned 5 to 6 percent rating for the left shoulder. He does not set out work restrictions, but instead states: "The patient should be able to work within a restriction that both the company and Dr. Stone can agree on." Exhibit 2, Collopy report dated November 20, 1996, page. 3.

As noted above, the respondent concedes the shoulder injuries and the parties have agreed on the extent of temporary disability. The respondent also concedes certain amounts of permanent disability at the shoulder. At issue, then, is the extent of permanent disability beyond that conceded, and the respondent's liability for certain medical expense.

The commission concludes the applicant sustained permanent partial disability at ten percent compared to amputation at the left shoulder and twenty percent compared to amputation at the right shoulder. In rejecting Dr. Collopy's ratings, the commission notes first that he found a healing plateau with minimal permanent partial disability in 1993 when the applicant was still symptomatic with a tear that was later discovered by Dr. Stone. The commission cannot credit Dr. Collopy's continued reliance on the low rating at the right shoulder even after the applicant underwent a second surgery.

More significantly, Dr. Collopy gives little or no weight to the applicant's considerable loss of arm strength. True, the administrative code sets out minimum ratings at the shoulder based on loss of range of motion, (2) and true the applicant here has only a minimal loss of motion. However, pain and loss of strength are also valid bases for rating functional permanent disability. (3) Here, while the applicant's loss of range of motion may not be significant, he has considerable loss of strength. Indeed, the applicant can no longer perform his sheet metal worker duties as a result. IME Collopy's ratings do not reflect this loss of strength; treating surgeon Stone's ratings do. (4)

The applicant is entitled to 50 weeks of permanent partial disability compensation based on ten percent permanent partial disability at the left shoulder. The compensation is payable at the weekly rate of $164 (the maximum for injuries occurring in 1995. The total award for the left shoulder is thus $8,200, from which must be deducted the $4,100 previously paid, leaving a net award under this order for the left shoulder of $4,100.

In determining the applicant's disability award for the right shoulder injury, his prior right elbow disability must be taken into account. Under Wis. Admin. Code § DWD 80.50, a pre-existing disability to a more distal (distant from the body trunk) part is subtracted from the base for computing the award for a more proximal (closer to the body trunk) part.

In this case, the applicant's previously-injured elbow is more distal than the shoulder. Thus, the five-hundred week base for disability compared to amputation at the shoulder should be reduced by 22.5 weeks (5) before applying the 20 percent disability rating. Thus, the applicant is entitled to 95.5 weeks of permanent partial disability for her right shoulder injury, payable at $144 per week (the maximum for injuries occurring in 1992). The total award for the right shoulder is thus $13,752 from which must be deducted the $8,372 previously paid, leaving a net award for the right shoulder under this order of $5,380.

In total, then, the additional amount awarded for permanent disability under this order is $9,480 all of which has accrued. The applicant approved an attorney fee of 20 percent on her additional award under Wis. Stat. § 102.26. The resulting fee ($1,896), together with attorney costs ($76.95) shall be deducted from the award, and paid to the applicant's attorney within 30 days. The remainder, $7,507.05, shall be paid to the applicant within 30 days.

The next question is the compensability of the disputed medical expense. The bill for treatment at Aurora Medical Group was not for the shoulder injuries, and is denied. (6) However, the applicant did incur reasonable and necessary treatment expense from Rehabilitative Med. Services in the amount of $481, of which $214.56 has been paid by Core Source (a non-industrial insurer), $212.30 has been written off, and $53.74 has been paid by the applicant; from Diagnostic Radiology, Ltd., in the amount of $34.32, all of which has been paid by Core Source; from St. Luke's Medical Center in the amount of $2,449, of which $2,124.31 has been paid by the insurer, $100 has been paid by the applicant, and $224.69 remains outstanding; from Hand Surgery $53, all of which has been paid by Core Source; and from Milwaukee Radiologists Ltd., s.c., $701.12, of which $482.40 was paid by Core Source, $75 was paid by the applicant, and $143.72 remains outstanding. The amounts still outstanding shall be paid, the applicant shall recover his out of pocket expense, and Core Source if entitled to reimbursement under Wis. Stat. § 102.30(a).

Dr. Stone reported that, while the applicant's prognosis was good, he would require further treatment as necessary. Dr. Collopy evidently does not disagree with that assessment (though he does opine the applicant had reached "maximum medical treatment from both shoulder surgeries.") Accordingly, this order shall be left interlocutory to allow the applicant the opportunity to claim and prove additional temporary disability, permanent disability, or medical expense.

INTERLOCUTORY ORDER

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

Within 30 days, the employer and its insurer shall pay all of the following:

1. To the applicant, Robert Awe, Seven thousand five hundred seven dollars and five cents ($7,507.05) in disability compensation.
2. To the applicant's attorney, Steven Lownik, One thousand eight hundred ninety-six dollars ($1,896) in attorney fees, and Seventy-six dollars and ninety-five cents ($76.95) in costs.
3. To St. Luke's Medical Center, Two hundred twenty-four dollars and sixty-nine cents ($224.69) in medical treatment expense.
4. To Milwaukee Radiologists, Ltd., s.c., One hundred forty-three dollars and seventy-two cents ($143.72) in medical treatment expense.
5. To Core Source, Seven hundred eighty-four dollars and twenty-eight cents ($784.28) as reimbursement for medical expense paid.
6. To the applicant, Two hundred twenty-eight dollars and seventy-four cents ($228.74) for out-of-pocket medical expense.

Jurisdiction is reserved for further findings and orders as are appropriate.

Dated and mailed June 30, 1999
awero.wrr : 101 : 5 ND § 5.18 - Schedule Injury

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

The commission modified the ALJ's decision only with respect to the credit for the pre-existing elbow disability. Because the modification was made purely on a point of law, no credibility conference was held. Transamerica Ins. Co. v. ILHR Department, 54 Wis. 2d 272, 283-84 (1972). The commission addressed the remaining points raised by the respondent on review in its findings of fact.

cc: ATTORNEY STEVEN J LOWNIK
SCHOBER & RADTKE SC

ATTORNEY TIMOTHY J SCHUMANN
LINDNER & MARSACK SC

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Footnotes:

(1)( Back ) An earlier set of restrictions prohibited repetitive shoulder use, no overhead activities and use of the right arm as a helper. Exhibit K, report dated May 23, 1996. While that set of restrictions did not set a lifting limit, it restricted the applicant to "supervisory duties."

(2)( Back ) Wis. Adm. Code § DWD 80.32(7).

(3)( Back ) Ricky Nelson v. Associated Milk Producers, Inc, WC claim no. 1994040617 (September 30, 1998); Gene Blaser v. Country Club of Beloit, WC claim no. 199605228 (July 29, 1998); Holly Edholm v. Polaris Industries, Inc., WC claim No. 1997018338 (March 31, 1999). See also "How to Evaluate Permanent Disability," (WKC-7761-P (R.10/97).

(4)( Back ) On this point, the commission also notes that Dr. Collopy's most recent report does not challenge Dr. Stone's ten- pound lifting limit. Indeed, Dr. Collopy's November 1996 report, if anything, seems to agree with whatever restrictions Dr. Stone sets. See exhibit 2, page 3.

(5)( Back ) Based on five percent permanent partial disability rating at the elbow. See Wis. Stat. § 102.52(2).

(6)( Back ) The applicant does not dispute the ALJ's denial of this expense on review.