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

GARY A LABONTE, Applicant

MAYSTEEL CORP MENO FALLS, Employer

CONNECTICUT INDEMNITY CO, Insurer

WORKER'S COMPENSATION DECISION
Claim No. 1999006958

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 applicant, who was not represented by counsel, claims he sustained an injury to his right hand caused by repetitive job activities while working for the employer. He seeks medical expense and disability related to a right hand carpal tunnel surgery. The employer and insurer (collectively, the respondent) concede jurisdictional facts, and an average weekly wage at the time of the alleged date of injury of $492.00.

The first issue, is whether the applicant in fact suffered an injury from an accident or disease arising out of his employment with the employer, that was sustained while providing services growing out of or incidental to that employment. If such an injury is established, the next question is the nature and extent of disability from the injury, and the respondent's liability for the expense of treatment.

The applicant, who was born in 1953, has worked as a spray painter for 17 years. He first worked at Smith Incorporated for seven years from about 1982 to about 1989. He then worked for P & H Mining Equipment, a Harnischfeger Industries Company (Harnischefeger) for nine years from about 1989 to February 1998. Finally, he started working for the named employer, Maysteel Corporation (Maysteel) in August 1998.

The applicant underwent left hand carpal tunnel surgery in 1996 while working for Harnischfeger; that hand has recovered except for cramping. He noted the onset of intermittent tingling symptoms in the right hand in October 1997, while he was still working at Harnischfeger. Transcript, pages 11 and 17 However, the applicant did not treat for the problem while working at Harnischfeger, at least he did not see a doctor about the problem.

In February 1998, the applicant was laid off from Harnischfeger. In July 1998, while on layoff, the applicant had a heart attack. After the applicant recovered, he began working for Maysteel in August 1998.

In September 1998, about a month after starting work at Maysteel, the applicant's right hand symptoms began to get much worse. He began experiencing forearm pain, numbness in what he called his two forefingers so that he could not feel his spray gun, and pain at night. Transcript, pages 7 and 18. Accordingly, he sought treatment from his primary care doctor Denish Pubbi, M.D., on October 12, 1998. (1)

Dr. Pubbi noted that the applicant presented with right hand numbness and tingling, and he told the doctor he had "a carpal tunnel on both sides in the past." The doctor diagnosed right side carpal tunnel syndrome and gave the applicant a splint. He also ordered an EMG.

The EMG was done on October 19, 1998. The doctor who did the EMG test, Walter K. Wong, M.D., noted the 16-year history as a painter using a spray gun, the 1996 left carpal tunnel surgery, and intermittent numbness in the right hand a year earlier. The EMG showed mild to moderate right side carpal tunnel syndrome.

Accordingly, the applicant next saw a hand surgeon, Lewis Chamoy, M.D., on November 2, 1998. Dr. Chamoy noted a one-year history of right hand numbness, and the applicant's employment as a spray painter. Dr. Chamoy's notes suggest the applicant complained about the problem at Harnischfeger's medical department and was given a splint. (2) Dr. Chamoy noted the layoff from work, and that the applicant's hand began bothering him when he returned to work. Dr. Chamoy recommended surgery.

The applicant then saw Gregory Gnadt, M.D., for a surgical consultation on December 14, 1998. In a "to whom it may concern letter" after the visit, Dr. Gnadt accurately noted the applicant's work history, and described the applicant's duties in some detail. He believed in all medical probability that the applicant had carpal tunnel syndrome secondary to cumulative trauma disorder. He recommended surgery, but wanted medical clearance, given the applicant's prior heart attack.

Dr. Gnadt went ahead with the surgery on May 25, 1999. The applicant was off work thereafter until June 29, 1999. At the hearing on July 12, 1999, he described the incision as still tender, and testified he was on light duty doing one arm work. The applicant thought he was improving, though he still had stiffness in the wrist which he hoped would work out. Transcript, page 9.

The applicant evidently pressed his claim with both Harnischfeger and Maysteel. Both rejected the claim. The applicant then filed an application for hearing naming Maysteel. Prior to the hearing, Maysteel sought to have Harnischfeger impleaded, a claim they pursued before ALJ Lawrence. The department did not grant the request, and that matter proceeded to hearing with only Maysteel and its insurer as respondent.

The record contains expert medical opinion from three sources. Dr. Chamoy opines the applicant's disabling condition was the result of an aggravation, acceleration, or precipitation of a pre-existing degenerative condition beyond normal progression, listing September 17, 1998 (the date of the applicant's canceled appointment with Dr. Chamoy and the time the symptoms dramatically worsened while working at Maysteel), as the date of the "traumatic event" causing injury. For further explanation, Dr. Chamoy refers the reader to his notes which add little beyond the fact the disability was from carpal tunnel syndrome. Dr. Chamoy's practitioner's report indicates the extent of permanent disability, if any, could not then be determined.

Dr. Gnadt also offers an opinion. His report gives a diagnosis of carpal tunnel disorder from work as a spray painter, noting the positive EMG for right carpal tunnel syndrome. He opined both that (a) a February 27, 1998 "traumatic event" (this would be the last day of work at Harnischfeger) caused the injury directly and (b) that the applicant suffered a condition caused by a material period of workplace exposure as a spray painter which work exposure was at least a material contributory causative fact in the condition's onset or progression (i.e., disability from occupational disease.)

Dr. Gnadt failed to fill in a date of disability from work, as requested by the part of the practitioner's report form dealing with occupational disease. However, his report does note (in box 16 dealing with elements of disability):

"CTS with damage to Median N[erve] at the wrist-Most of the damage occurred at his prior job but he was accepted for employment 'as he was' ('as is')-His first medical care, as far as I know, was at the 2nd job."

Among the documents attached to Dr. Gnadt's practitioner's report form is the letter detailing his December 14, 1998 office visit with the applicant, in which the doctor, after accurately describing the applicant's work history and duties at both Harnischfeger and Maysteel states:

"I feel in all medical probability that both jobs contributed to the obvious cumulative trauma disorder. His symptoms have reached the level of severity only after the second job. Employers must accept employees as they find them and per DWD statutes and case law the second or current employer is liable for coverage determined by the first day of lost time..

"My impression in all medical probability is that Mr. Labonte [sic] has carpal tunnel syndrome secondary to cumulative trauma disorder."

Exhibit C, Gnadt letter dated December 17, 1998.

Dr. Gnadt's practitioner's report also indicates that the question of permanent disability depended on the result of surgery.

The insurer retained Kevin Weidman, M.D., as its independent medical examiner. Dr. Weidman noted the applicant's left hand symptoms and surgery while working at Harnischfeger, his acknowledgement of right hand tingling which was never formally documented at that time, that his symptoms were relieved significantly by time off work (due the economic layoff), and that he reported the numbness and tingling about 30 days after starting work at Maysteel. Dr. Weidman also referred to the wrist splint apparently provided at Harnischfeger (which is mentioned in Chamoy's note, but which the applicant stated by letter was inaccurate).

Regarding causation, Dr. Weidman responded "No" to the specific interrogatory "Do you feel working at Maysteel versus all the years at Harnischfeger was the material contributing factor to the onset and progression of his current condition? [Emphasis added.]"

By way of explanation, Dr. Weidman writes:

"The structural changes involving the right-sided carpal tunnel syndrome occurred while he was working at Harnischfeger Corporation. Therefore, it is my opinion, within a reasonable degree of medical probability that the limited work exposure at Maysteel Corporation was not sufficient to have caused a progression of his right sided carpal tunnel syndrome."

He also opined that the applicant's "current complaints were merely manifested when he returned to work at Maysteel as a spray painter," explaining:

"It is my opinion that his current complaints were only a manifestation of his preexisting condition. While the examinee's brief workplace exposure at May Steel Corporation may have led to increased awareness of his symptoms, I do not believe that the limited workplace exposure would have resulted in additional structural changes in his right carpal tunnel syndrome."

Exhibit 1, report of Weidman, pages 5 and 6.

The ALJ, after effectively denying the request to have Harnischfeger impleaded, found Maysteel liable. As noted above, Maysteel appeals. It contends that the applicant has not proven that employment at Maysteel was a material contributory causative factor in the progression of his condition. Maysteel asserts that both the applicant's own medical evidence, as well as the IME, can only support the finding that exposure at Harnischfeger was responsible. In making this argument, Maysteel points out that Dr. Chamoy did not opine the applicant's condition was caused by "occupational disease" while working for Maysteel, and that Dr. Gnadt gives the date of injury as the last day of employment with Harnischfeger. In sum, Maysteel asks the commission to dismiss the application as to it, and remand for proceedings against Harnischfeger.

However, the commission agrees with the ALJ that the record establishes that the applicant sustained an injury from occupational disease while working at Maysteel. The commission acknowledges that Dr. Chamoy may have marked the wrong box by indicating Lewellyn 3 (3)  causation instead of occupational disease. However, as the commission has held, and the courts have recognized, (4)   the concepts of "work activity" aggravating a pre-existing degenerative condition beyond normal progression (Lewellyn 3) versus work exposure which is a material contributory causative factor in the progression of a disease (occupational disease), are closely related. Indeed, the courts and commission routinely reject the so-called "wrong box" theory. (5)    Instead, the focus before the commission is which legal causative test applies based on the medical record, not on whether the medical expert identified the correct legal test. See for example, Jos. Schlitz Brewing Co. v. DILHR, 67 Wis. 2d 185, 191-92 (1975).

Similarly, the commission is not inclined to reverse based upon Dr. Gnadt's reference to the February 27, 1998 date of injury on box 3 of his practitioner's report. To begin with, that box does not ask for "the date of injury" but "Date of Traumatic Event." However, there is no traumatic event in this case; the applicant's claim is for disability based upon periods of work exposure. Further, the traumatic event date requested by box 3 does not apply to causation by occupational disease from appreciable periods of exposure. In cases of causation by occupational disease, the medical expert is asked to give the "date disability from work began" in box 13 rather than filling out a traumatic event date in box 3. In this case, while Dr. Gnadt marked the "occupational disease" box 13 "yes," he left the date of disability from work blank.

The commission declines to infer from box 4 that Dr. Gnadt meant to opine that the applicant's disability from work began on February 27, 1998, the applicant's last day of work with Harnischfeger. Clearly, the applicant was not disabled from work on February 27, 1998 but stopped working due to an economic layoff.

The commission also declines to infer from the February 1998 date that Dr. Gnadt meant that the employment with Harnischfeger was the last to play a causal role in the development or progression of the applicant's carpal tunnel disease. That inference runs counter to the facts. In fact, Dr. Gnadt said in response to question 16 on the form that "most" of the damage was done in the first job (Harnischfeger), leading to the inference that some damage was done in the second (Maysteel). Moreover, in his attached narrative, Dr. Gnadt stated:

"I feel in all medical probability that both jobs contributed to the obvious cumulative effect of the trauma disorder. His symptoms have reached the level of severity only after the second job.."

In addition, the applicant performed the same duties at Maysteel as those he performed at Harnischfeger which IME Weidman found causative. His condition did not become bad enough to cause him to seek treatment until one month into his job with Maysteel. Finally, the applicant's symptoms when he did seek treatment were (by the consistent accounts in the medical records) not just worse but qualitatively different (numbness and pain in the hand and arm instead of tingling in the fingers) than they had been when he worked at Harnischfeger.

In sum, the commission concludes that the reports of Drs. Chamoy and Gnadt establish that the applicant's work at Maysteel was a material contributory factor in the progression of his carpal tunnel condition, (6)    and that their opinions are more credible than Dr. Weidman's.

The next issue is the date of injury. In a case of occupational disease, the date of injury is the earlier of (a) the date of disability or (b) the last day of work for the last employer whose employment caused the disability. Wis. Stat. § 102.01(1)(g)2. The "date of disability" is further defined to be the first day of lost work time attributable to the occupational disease. General Cas. Co v. LIRC, 165 Wis. 2d 174, 180 (Ct. App. 1991).

In this case, the last employer whose employment caused disability is Maysteel, for whom the applicant still works. The commission infers in this case that the date of disability, in terms of the first lost work time attributable to treatment of the condition, was when the applicant treated with Dr. Pubbi on October 12, 1998. While the record does not expressly establish that the applicant actually missed work time for this appointment, neither the applicant nor the respondent assert otherwise or argue for a later date. (7)

Although the date of disability, and thus date of injury, stems from the October 12, 1998 doctor's appointment, the applicant did not show sufficient wage loss from that appointment to qualify for temporary disability compensation under Wis. Stat. § 102.43 at that time. Instead, the applicant seeks temporary disability compensation only for the period from his surgery May 25, 1999, until his return to work on June 29, 1999, a period of four weeks and five days.

Temporary total disability during that period is supported by the record. Accordingly, the applicant is entitled to four weeks and five days of compensation at the weekly rate of $328 (two-thirds of his average weekly wage of $492). The total award for temporary disability compensation in this case, then, is $1,583.33.

As a further result of his injury the applicant incurred medical and mileage charges which were reasonable and necessary to cure and relieve him from the effects of his injury. He submitted Exhibit B which lists his medical expenses and mileage charges. However, no receipts or billing statements are attached to this exhibit. Accordingly, the applicant will be given an opportunity to submit supporting receipts or other statements for these charges. When the receipts or statements are received, the charges will be ordered paid. For that reason the order will be made interlocutory with respect to unpaid medical expense.

Drs. Gnadt and Chamoy indicate that the applicant may have permanent disability after his treatment has ended. In addition, as explained above, the applicant must submit receipts or billing statements to support his claim for medical treatment expenses. Accordingly, this order shall be left interlocutory to permit the payment of medical expense, and to permit an award for permanent disability.

NOW THEREFORE, the Labor and Industry Review Commission makes this

INTERLOCUTORY ORDER

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

Within 30 days from the date of this decision, the employer and its insurer shall pay the applicant, Gary A LaBonte, One thousand five hundred eighty-five dollars and thirty-three cents ($1,585.33) for disability compensation.

Dated and mailed February 10, 2000
labonte.wrr : 101 : 5  ND § 3.4

/s/ David B. Falstad, Chairman

Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

NOTE: On appeal, the respondent does not ask for a rehearing with Harnischfeger impleaded. Rather, it asks the commission that the application be dismissed as to it, and that the matter be remanded for proceedings against Harnischfeger. However, because the commission concludes that Maysteel is the liable employer, and apportionment among employers as to occupational disease with a single date of injury is inappropriate, (8)  a remand is not necessary.

cc: ATTORNEY ROLAND C CAFARO
CASTAGNA EVEN CAFARO & SOULE

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Footnotes:

(1)( Back ) It appears the applicant scheduled, but cancelled, an appointment with hand specialist Lewis Chamoy, M.D., on September 17, 1998.

(2)( Back ) There is no testimony about this visit in the transcript. However, one of the pages stapled to exhibit A is a June 1999 letter from the applicant to Dr. Chamoy stating that he received no treatment from Harnischfeger, and that the splint was first prescribed when he treated with Dr. Pubbi after starting work at Maysteel.

(3)( Back ) See Lewellyn v. DILHR, 38 Wis. 2d 43, 58-59 (1968).

(4)( Back ) See, for example, Shelby Mutual Ins. Co. v. DILHR, 109 N.W.2d 655 (Ct. App. 1982).

(5)( Back ) The commission and the courts generally elevate the substance of a narrative report describing causation over the check marks on the practitioner's report form. Johnson Welding & Manufacturing Co. v. LIRC and Skogstad, case no. 94CV704 (Wis. Cir. Ct. Eau Claire County, July 3, 1995); Harnischfeger v. LIRC and Dzenzeol, case no. 95-0212 (Wis. Ct. App. August 8, 1995); and Anderson v. LIRC and Quad Graphics, case no. 95-1023-FT (Wis. Ct. App. November 7, 1995 (where LIRC was reversed after denying based on the treating doctor having marked two causation boxes.)

(6)( Back ) Universal Foundry Co. v. DILHR, 82 Wis. 2d 479, 487-88 note 5 (1982).

(7)( Back ) The respondent asserts the date of injury should be February 27, 1998, the last day of work for Harnischfeger; the respondent asserts the date of injury is September 17, 1998 when he noted the increase in symptoms.

It should be noted that in ordering payment by Connecticut Indemnity Co. c/o EBI Companies, the commission assumes that they were on the risk on October 12, 1998.

(8)( Back ) General Cas. Co. v. LIRC, 165 Wis. 2d 174, 180 note 4 (Ct. App., 1991); Employers Mutual Liab. Ins. Co. v. McCormick, 195 Wis. 410, 415 (1928).