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


JANICE M MEYER, Applicant

WISCO INDUSTRIES INC, Employer

SENTRY INSURANCE CO, Insurer

WORKER'S COMPENSATION DECISION
Claim No. 1989057290


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) concede that the applicant developed bilateral carpal tunnel syndrome from her work as a welder. The applicant sustained about 8 months of temporary disability for various periods pending surgery, and the employer conceded permanent partial disability at 25 percent compared to amputation at the right (dominant) hand and 5 percent to the left wrist.

The applicant now claims psychological disability from the work injury. This claim is supported by her expert psychologist, (1) Kate Kavanagh, Ph.D. Dr. Kavanagh opined that the work injury directly caused psychological disability which she rated at 50 percent to the body as a whole. The doctor explained that the applicant's pain (which was significant and awoke her from sleep), the general unreliability of her hands, and her sense of loss from the work injury have resulted in a chronic mood disorder as well as compromising her immune system.

Dr. Kavanagh further noted that the applicant had coped well with past stressors, which included an abusive spouse, a spouse and children with substance abuse problems, and her son's arrest and ten-year prison sentence for vehicular homicide, and the applicant's own cervical cancer. However, the applicant's work injury caused her to lose her job, and greatly impaired her ability to care for herself and engage in her hobbies. Dr. Kavanagh also noted the applicant was frustrated that her considerable efforts at retraining at a VTAE school were wasted because her carpal tunnel condition hindered her ability to find work in the field.

The employer relies on the opinion of N. Timothy Lynch, Ph.D. (2) Applying a "post traumatic stress diagnostic scale (PSD)," Dr. Lynch noted six areas of trauma but concluded her psychological stress was primarily the result of the 10-year imprisonment of her son for vehicular homicide. She told the doctor that thoughts of her son's jail term and that he committed a homicide occurred frequently, and left her with feelings of terror, helplessness, anger and irritability, sadness, guilt and numbness. She described physical symptoms including sleep disturbance.

Dr. Lynch noted other sources for psychological stress, including the death of a baby granddaughter. He noted, however, that while her symptoms which she associated with her son's incarceration occurred frequently during the week, she remained functional when she did not think about them. The doctor concluded:

"Ms. Meyer denies that she is depressed at the present time [consistent with MMPI testing] although she does report symptoms consistent with a post traumatic stress response resulting from multiple sources unrelated to the 1989 injury but related primarily to her son's incarceration for homicide. While she does exhibit symptoms of post traumatic stress when her thoughts are directed toward traumatic events in her life, she appears to be functional with normal performance on the mental status examination and is able to work.

"Her hand injury of 1989 has no causal relationship to her psychological condition with the exception of providing a more socially acceptable explanation for her psychological symptoms. In my opinion her work injury was not the cause of her psychological sequelae."

The applicant's case relies on the conclusion that her distress from her work injury, culminating with her discovery in 1994-1995 that she probably would not physically be able to do the job she was training for at the VTAE school, caused her psychological problem. Dr. Kavanagh's opinion depends in part on the "chronicity" of the onset of the applicant's psychological problem with the recognition in 1994 that the 1989 work injury would prevent her from engaging in police science and her normal hobbies. However, the applicant's son was also arrested in 1994. Her infant grandchild also died in 1994. The injuries underlying the carpal tunnel surgeries occurred in 1989.

The commission acknowledges that a diminishment of functional capacity can cause psychological problems. However, in light of the other significant stressors in the applicant's life, as well as Dr. Lynch's report, the commission is left with legitimate doubt on the causal relationship between the work injury and the psychological disability in this case.

ORDER

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

Dated and mailed June 30, 1999
meyerja.wrr : 101 : 5 ND § 5.18  § 5.20

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner


MEMORANDUM OPINION

The ALJ found Dr. Kavanagh more credible with respect to causation. The ALJ noted that the applicant did not seem to be in any distress when describing her son's arrest and imprisonment for negligent homicide at the hearing. The ALJ noted that the applicant obviously had pain in her hands while testifying, and credibly testified she was disturbed by the unreliability of her hands. During a credibility conference, the ALJ informed the commission that she regarded the applicant as a resilient individual who wanted to return to work and was in no way malingering. She explained that the applicant was on the verge of tears at the hearing, and credibility testified to the disabling effects of her anger, frustration, and inability to sleep.

The commission does not question the ALJ's belief that the applicant is not malingering, and that the applicant has a genuine disabling psychological condition. However, given the other stressors in the applicant's life, and the chronicity among them and the onset of the applicant's disability, the commission declines to credit Dr. Kavanagh's expert medical opinion as explained above.

cc: ATTORNEY JIM SCHERNECKER
ACTION LAW SC

ATTORNEY THEODORE T BALISTRERI
OTJEN VAN ERT STANGLE LIEB & WEIR SC


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Footnotes:

(1)( Back ) Psychologists are qualified to give expert opinions on causation, extent of disability and necessity of treatment under Wis. Stat. § 102.17(1)(d).

(2)( Back ) The applicant's attorney arranged for Dr. Lynch to met with a medical doctor, Icenogle, to "audit" the IME under Wis. Stat. § 102.13. According to Dr. Lynch, Dr. Icenogle first admitted he had never treated the applicant, but referred to patient's "testing" generally as a "fishing expedition" by attorneys to find something to base a settlement on. Dr. Icenogle, who is also a lawyer, has provided a letter denying making those statements. Applicant's exhibit B. 3