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

CRAIG MAYER, Applicant

CONRAD SCHMITT STUDIOS, Employer

THE NORTH RIVER INS CO, Insurer

WORKER'S COMPENSATION DECISION
Claim No. 1996048703

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 August 31, 1999
mayercr.wsd : 101 : 7 ND § 5.18

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

The applicant, a foreman for a company that renovates buildings, sustained a conceded work injury on August 23, 1996. He slipped while walking down a darkened stairwell, and lost his balance while gripping the stair railing with his right hand. He felt a tearing sensation in his right arm, with immediate pain. He was diagnosed that day with a torn biceps muscle and rotator cuff tear.

The applicant eventually underwent a rotator cuff repair surgery on October 17, 1996. The surgery helped decrease his shoulder pain. At issue is the extent of his residual disability.

The administrative code sets standards for permanent partial disability ratings at the shoulder, based on active elevation in abduction and flexion. Wis. Admin. Code § DWD 80.32(7). Normal elevation in abduction and flexion at the shoulder is 180 degrees. A 135 degree active range of motion in active elevation in flexion and abduction is rated at a minimum of five percent compared to loss of the arm at the shoulder; a 90 degree range is rated at a minimum of 20 percent; a 45 degree range at a minimum of 30 percent.

The ALJ awarded permanent partial disability at 30 percent compared to loss of the arm at the shoulder, based on the rating of the applicant's treating doctor, Mark Benson, M.D., in his note dated April 7, 1997. The ALJ noted that Dr. Benson estimated the applicant's range of active forward flexion in his right shoulder to be 135 degrees and active right shoulder abduction to be 80 degrees. (1)

In adopting Dr. Benson's 30 percent rating, the ALJ also noted the applicant's complaints of difficulty raising his right arm, shakiness in his right arm when he exerts pressure, and right shoulder weakness. The weakness, particularly, was noted in the final reports of Dr. Benson in April and July 1997, as well as the report of the independent medical examiner McDevitt. These additional symptoms, the ALJ concluded in her decision, justified a departure from the minimum ratings in the code.

The employer and insurer (collectively, the respondent) appeal, contending that the range of motion, even by the treating doctor's estimate, is in fact higher than the figures listed by the ALJ. However, the range of motion figures the employer gives are the treating doctor's report of passive ranges of motion, while the administrative code estimates are based on active ranges of motion. The ALJ correctly used the active range in setting permanent partial disability, and as noted above, if anything perhaps overstated the actual active range of motion in this case.

The respondent also asks the commission to disregard the applicant's self-serving testimony about pain, weakness and range of motion. This argument rests to a large extent on the applicant's failure to recall a prior right arm injury in 1981 that resulted in a single doctor's visit during which a normal x-ray was taken. However, the commission is not inclined to draw an adverse credibility assessment based on a construction supervisor's failure to remember such a relatively insignificant physical injury 17 years later. In addition, the commission notes that the respondent's independent medical examiner noted weakness in external rotation, abduction, and forward flexion upon examination. Exhibit 2, report of McDevitt, page 1.

cc: ATTORNEY MIRIAM R HORWITZ
ZUBRENSKY PADDEN HORWITZ & WEIR

ATTORNEY J PATRICK CONDON
BORGELT POWELL PETERSON & FRAUEN SC

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Footnotes:

(1)( Back ) These were the figures given by the treating doctor in April 1997. In July 1997, after the applicant returned to work, the active forward flexion was down to 110 degrees.