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


CHRISTOPHER CLAUSING, Applicant

WATER SERVICES OF AMERICA, Employer

EURO MACHINERY SPECIALISTS, Employer

NORTH RIVER INSURANCE CO, Insurer

HANOVER INSURANCE CO, Insurer

WORKER'S COMPENSATION DECISION
Claim Nos. 1994031641 and 1998000785


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 applicant seeks disability compensation and medical expense following a right hand problem that required surgery on February 8, 1998. At issue is which of two employers (and their respective insurers) are liable. Both employers deny the claim.

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 applicant, a machinist, was born in 1959. He began working for Water Services of America (WSA) in 1989. His duties at WSA involved making parts, which included "working the machines" and using hand tools including wrenches, hammers and screw drivers. He also used impact tools including an impact wrench.

The applicant developed wrist pain in 1993 while working at WSA which was diagnosed as bilateral carpal tunnel syndrome. He underwent surgeries on his right wrist in May 1994 and his left wrist in June 1996, after which his doctor assessed permanent partial disability at 2.5 percent to each wrist. However, the applicant's employer in 1993 Water Services of America (WSA) paid him forty-four weeks of permanent partial disability, which works out to five percent at each wrist.

In October 1995, the applicant left his job with WSA. In July 1996, he began work with Euro Machinery Specialists (EMS). His job at EMS involved sanding, lathe work, operating a milling machine. The job at EMS included use of vibratory tools.

By November 1997, the applicant testified, his right wrist hurt so much he could not continue to work. He had another right wrist surgery in February 1998, and was subsequently released to return to work in July 1998 after reaching a healing plateau. The surgeon who performed the February 1998 surgery, David W. Olson, M.D., rated the applicant's permanent partial disability at his right wrist as follows:

"I would recommend an assignment of five percent permanent partial disability at the level of the right wrist. This would be inclusive of any previously assigned disability. As I have not previously treated him, I do not have knowledge specifically of any prior permanency that may have been assigned.."

Exhibit C, last page, Olson note dated July 21, 1998.

The first issue is which employer is liable for the February 1998 surgery and additional disability compensation.

WSA's medical expert (James White, M.D.) blames the 1997 problems and 1998 surgery on employment at EMS. On the other hand, EMS's expert (Anoo Patel, M.D.) attributes the permanent problems to WSA, though Dr. Patel does admit exposure to the vibratory equipment at EMS may have caused some temporary aggravation.

The applicant's treating doctor (Olson) prepared a practitioner's report describing the event that caused the applicant's condition as "progressive." The report also refers to attached notes for an explanation of the exposure that caused the applicant's disability by occupational disease. Dr. Olson's notes do not expressly answer the question of what exposure caused the applicant's condition, though the notes include a letter dated December 4, 1997 which refers to employment at EMS and also describes the applicant's prior history of upper extremity problems dating back four years (to his 1993 employment with WSA). The doctor describes these symptoms as never completely resolved. In a subsequent note, Dr. Olson expressly opines that the applicant's 1997 problems were a continuation of the problem beginning in 1994 at WSA. See exhibit Hanover 4, note of Olson dated October 27, 1998.

Like the ALJ, the commission credits the opinions of Drs. Olson and Patel, and finds that employment at WSA caused the applicant's disability at issue in this case. On appeal, WSA contends the October 1998 opinion of Dr. Olson is untimely and incredible in light of his practitioner's report. WSA also asserts that Dr. Patel's opinion, which refers to a temporary aggravation at EMS, supports a finding that employment at EMS caused the applicant's need for the February 1998 surgery and resulting disability.

However, the commission is not persuaded that Dr. Olson's October 1998 opinion is necessarily inconsistent with his earlier practitioner's report, which does not expressly state what work exposure caused the applicant's current condition, but does refer to the treatment before the applicant began work at EMS and report that the applicant's history suggested he was never symptom-free but continued to have pain since the earlier treatment. Further, the commission reads Dr. Patel's report to unequivocally opine that the applicant's current condition was the result of employment at WSA. The mere reference to a possible temporary increase in symptoms caused by employment at EMS does not equate to a finding of causation. See Lewellyn v. DILHR, 38 Wis. 2d 43, 59-60 (1968).

The commission appreciates that it has previously held that there may be multiple dates of injury in occupational disease cases, so that subsequent employers may be held liable for increased disability resulting from a worker's employment with the subsequent employer, even though prior employment had already resulted in some disability. However, in this case, the more credible medical opinion indicates that the applicant was never symptom-free after the injury at WSA, that he continued to experience pain after that injury, and that his current disability is merely a continuance of that injury.

Accordingly, WSA and its insurer are liable for the amounts awarded under this order, and the application shall be dismissed as to EMS and its insurer.

The next issue is the extent of temporary disability. The applicant seeks temporary disability beginning in November 1997 when the applicant stopped working. However, the record contains no medical opinion to support the applicant's testimony that he had to stop working because of the pain. Indeed, his own expert puts the date that disability began at February 19, 1998, which was the date of the second right hand surgery. Exhibit C, practitioner's report of Olson.

The applicant asserts, without citation, that no expert report is needed to support a start date of temporary disability based on the applicant's belief he could no longer work. However, the commission generally denies disputed periods of TTD unless supported by expert opinion. See, for example, John Goldsworthy v. Ruffalo Special Pizza II, WC Claim No. 96052840 (LIRC, February 10, 1998). The commission therefore concludes that the applicant is entitled to temporary disability only from February 19, 1998 to May 26, 1998 when the applicant stopped active therapy.

Accordingly, a renewed period of temporary disability is awarded for the period from February 19, 1998 to May 26, 1998, a period of 13 weeks and four days. He was employed for four weeks during that period. Thus, for nine weeks and four days, the applicant is entitled to temporary total disability at the "renewal" rate for 1998 ($523 per week), or $5,055.67. For four weeks, he is entitled to temporary partial disability at the weekly rate of $410.42 per week, or $1,641.68. The total temporary disability awarded, then, is $6,697.35.

The applicant agreed to a fee of 20 percent on the additional amounts awarded under Wis. Stat. § 102.26. The fee of $1,339.47 (20 percent of $6,697.35), plus costs of $90.00 shall be deducted from the applicant's award and paid to the applicant's attorney within 30 days. The amount remaining to be paid to the applicant within 30 days equals $5,267.88.

As noted above, Dr. Olson rated the applicant's permanent partial disability at five percent compared to loss at the right wrist, inclusive of any prior disability. This normally would mean WSA was liable for an additional 2.5 percent following the February 1998 surgery, given the 2.5 percent previously assessed following the May 1994 surgery.

However, WSA asserts that its insurer previously paid five percent at the right wrist following the May 1994 surgery, an unwitting overpayment of the 2.5. Thus, WSA contends, its insurer has already paid the full five percent for the right wrist, as the ALJ in fact found in his decision. While the applicant states in his August 5, 1999 brief that he was not previously awarded five percent, the commission concludes that he was in fact paid five percent at the right wrist. This is supported by the payment of 44 weeks of permanent disability compensation shown on exhibit North River 1. Accordingly, no additional permanent partial disability is awarded.

The applicant has also incurred reasonable and necessary medical expenses to cure and relieve the effects of the work injury as set out in exhibit B. Specifically, the applicant incurred treatment expenses, for which WSA and its insurer are liable under Wis. Stat. § 102.42, as follows: from St. Joseph's, $2,407.50, all of which is unpaid; from Asset Care, Inc., $567.00, all of which is unpaid; from Aurora Medical Group, $763.00, all of which is unpaid; from Sinai Samaritan, $200.10, all of which is unpaid; from Assoc. Lab. Phy. Serv., $59.00, all of which is unpaid; from Hand Surgery, Ltd., $3,619.00, of which the applicant has paid $35.00, Primecare (a non-industrial insurer) has paid $740.58, and $1,835.49 remains outstanding; and $35.99 in out-of-pocket prescription expense, all of which is outstanding. Primecare is eligible for reimbursement of medical expenses it paid under Wis. Stat. § 102.30(7).

Because the applicant may require further treatment, and the commission cannot rule out future additional disability, this order is left interlocutory.

INTERLOCUTORY ORDER

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

Within thirty days from the date of this order, Water Services of America and its insurer (North River Ins. Co.) shall pay all of the following:

1. To the applicant, Five thousand two hundred sixty-seven dollars and eighty-eight cents ($5,267.88), in disability compensation.

2. To the applicant's attorney, the sum of One thousand three hundred thirty-nine dollars and forty-seven cents ($1,339.47) in fees and Ninety dollars ($90.00) in costs.

3. To St. Joseph's, Two thousand four hundred seven dollars and fifty cents ($2,407.50), in medical treatment expense.

4. To Asset Care, Inc., Five hundred sixty-seven dollars ($567.00) in medical treatment expense.

5. To Aurora Medical Group, Seven hundred sixty-three dollars ($763.00) in medical treatment expense.

6. To Sinai Samaritan, Two hundred dollars and ten cents ($200.10), in medical treatment expense.

7. To Assoc. Lab. Phy. Serv., Fifty-nine dollars ($59.00), in medical treatment expense.

8. To Hand Surgery, Ltd., One thousand eight hundred thirty-five dollars and forty-nine cents ($1,835.49) in medical treatment expense.

9. To Primecare, Seven hundred forty dollars and fifty-eight cents ($740.58), in reimbursement of medical expense.

10. To the applicant, the sum of Seventy dollars and ninety-nine cents ($70.99), in out-of-pocket medical expense.

The application is dismissed with prejudice against Euro Machinery Specialist and its insurer (Hanover Insurance Co.).

Jurisdiction is reserved for such further findings, orders and awards as are warranted.

Dated and mailed September 24, 1999
clausin.wrr : 101 : 5 IND § 5.3  § 5.9 

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

NOTE: Because the commission's modifications of the ALJ's decision did not depend on the credibility of any witness who testified at the hearing, but rather on the legal requirement of expert medical evidence to prove disability, no credibility conference was held.

cc: ATTORNEY THOMAS C WILKOSKI
LUCAS WILKOSKI & TAYLOR

ATTORNEY PHILIP LEHNER
CAPWELL NOLDEN KALLENBACH & GRAHOVAC SC

ATTORNEY JAMES P REARDON
KASDORF LEWIS & SWIETLIK SC


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