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

STEVEN FISHER, Applicant

CUSTOMIZED TRANSPORTATION, Employer

RELIANCE INSURANCE CO, Insurer

WORKER'S COMPENSATION DECISION
Claim No. 1998023344

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 in that decision as its own.

ORDER

The findings and order of the administrative law judge are affirmed.

Dated and mailed July 15, 1999
fishest.wsd : 175 : 7 ND  § 5.9, §8.18

/s/ David B. Falstad, Chairman

Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

The employer contends in its petition for commission review that the administrative law judge erred in determining that the applicant's fractured finger and need for temporary total disability resulted from the work injury on January 22, 1998. The employer contended that the applicant suffered a new injury to the same finger on March 30, 1998 while at home. However, Dr. Brown, who examined the applicant on behalf of the employer, did not opine that the applicant had suffered a new fracture at home on March 30, 1998. The evidence indicates that only one fracture appeared on the x-rays of the applicant's hand. The x-ray dated January 22, 1998 indicated that three views of the right hand demonstrated an oblique fracture through the proximal metaphysis of the proximal phalanx of the fifth digit, while the x-ray on April 21, 1998 indicated that there was a transverse fracture through the proximal shaft of the proximal pharynx of the right fifth digit with anatomic alignment, and there was a bridging callous formation across the fracture site with no other bony abnormalities seen. The fact that the x-rays in January 1998 indicated that there was an oblique fracture through the proximal metaphysis of the proximal phalanx of the fifth digit while the x-rays in April and May 1998 indicated that there was a transverse fracture through the proximal shaft of the proximal pharynx of the right fifth digit did not establish that there was a new injury. There was no medical evidence to establish that the difference in the description of the fracture constituted a new injury on March 30, 1998 which was not work related.

The commission consulted with the administrative law judge concerning her assessment of the witness' demeanor and testimony. The administrative law judge indicated that she credited the applicant's testimony of the nature and onset of his finger injury in January 1998 and that he had not suffered a new injury on or about March 30, 1998. However, the administrative law judge did indicate that she did not credit the applicant's testimony of his ongoing pain and restrictions as a result of his work injury. Based upon an independent review of the evidence in the record the commission has found nothing to warrant overturning the administrative law judge's credibility determination. The treatment notes from Dr. Bowers on March 30, 1998 simply indicate that the applicant reported that his hand hurt on March 28, 1998 over the weekend, but not that he had suffered any new injury. Also Dr. Brown opined that the applicant had suffered only a minor aggravation with no permanent disability as a result of his work injury. The administrative law judge appropriately noted that a radiology report dated April 21, 1998 indicated that there was a fracture of the proximal shaft of the proximal pharynx of the fifth digit in anatomic alignment with bridging callous formation across the fracture site, and that the fracture was not yet healed.

The commission finds that the evidence established that the applicant was entitled to temporary total disability from April 17, 1998 to May 5, 1998. Dr. Thomas opined that the applicant was temporarily totally disabled during this period of time and he stated in a letter dated August 4, 1998 that the applicant did not badger him to sign off on a work slip for April 20, 1998, and that all the therapy appointments were approved as part of a recommended treatment plan, and he felt that the applicant was unable to work during the time that he specified he should be off of work due to a work injury.

The employer also contends that the administrative law judge erred in awarding the applicant temporary total disability benefits from May 28, 1998 to June 26, 1998. The employer states that the administrative law judge simply awarded the benefits without any notice to the employer and that such a matter was not noticed for hearing, and the employer did not have the opportunity to present any evidence as to this matter. However, the applicant indicated in his application for hearing that he was requesting temporary total disability benefits from April 14, 1998 to whenever he healed. Therefore the applicant left open the matter of the length of the temporary disability to be adjudicated at the hearing since he filed his application for hearing on April 22, 1998 and had not yet been released to return to work or given permanent restrictions by Dr. Thomas. Dr. Thomas released the applicant to return to work without restrictions on June 26, 1998. Given the contents of the application for hearing, as well as the hearing notice, and the fact that Dr. Thomas did not release the applicant to return to work without restrictions until June 26, 1998 the commission finds that the employer was put on notice that temporary total disability benefits from May 28, 1998 to June 26, 1998 was at issue. The employer had the opportunity to cross-examine the applicant concerning his disability during that time and to present countervailing medical testimony. In addition, the commission agrees with the administrative law judge that under the holding of Brakebush Brothers v. LIRC, 210 Wis. 2d 623 (1997) the applicant was entitled to temporary total disability benefits for the period of May 28, 1998 following his termination to June 26, 1998.

cc: ATTORNEY ROBERT C HOWARD III

ATTORNEY ROBERT P OCHOWICZ
KASDORF LEWIS & SWIETLIK SC

Appealed to Circuit Court. Affirmed February 7, 2000.

[ Search Decisions ] - [ WC Legal Resources ] - [ LIRC Home Page ]