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


VAUGHN KNUTH, Applicant

VAN LIESHOUT SIMON DODGE, Employer

SOCIETY INSURANCE, A MUTUAL COMPANY, Insurer

WORKER'S COMPENSATION DECISION
Claim No. 1996018177


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, except that it makes the following modification:

Delete the 10th through 16th paragraphs of the ALJ's Findings of Fact and substitute:

"Treating Dr. Campion diagnosed bilateral carpal tunnel syndrome, and opined that it was caused by an accident or work exposure which precipitated, aggravated or accelerated a preexisting condition beyond normal progression. Exhibit A. However, when referring to what that accident or exposure was, Dr. Campion referred only to the applicant's symptoms (dropping objects at work and numbness). In his attached notes, the doctor referred to his job as a mechanic (though not his actual job duties and the stress they caused to his arms and wrists). An attachment to Dr. Campion's report does state that carpal tunnel syndrome is caused by repetitive forceful motion of the hands and wrists, and affects many workers.

"Dr. Campion stated it was too soon to rate permanent disability when he prepared his practitioner's report in October 1996. He also opined the applicant's condition was guarded, given the continuing pain and tenderness with heavy gripping seven months out from the April 1996 surgery.

"The applicant also submitted Dr. Campion's January 27, 1997 note indicating that the applicant had reached a healing plateau, as well as his August 27, 1997 note assessing permanent partial disability at not more than one to two percent. Exhibit B.

"The applicant also submitted a practitioner's report from Dr. Burwitz dated October 21, 1996. Dr. Burwitz deferred to Dr. Campion regarding the extent of disability. He opined that the repetitive gripping and use of tools caused severe bilateral carpal tunnel syndrome, as the result of an appreciable place of workplace exposure that was at least a material contributory factor in the onset or progression of the applicant's carpal tunnel syndrome. Exhibit C.

"The respondent and carrier submit the report of their independent medical examiner, Gay Anderson, M.D. Dr. Anderson does not believe the applicant's carpal tunnel syndrome was work-related. He noted the applicant had worked as a mechanic for many years, while the carpal tunnel syndrome came on only in November 1995. He also noted that the symptoms came on bilaterally, symmetrically, and insidiously. The doctor thus concluded that the problem was the result of a systemic or metabolic problem.

"Dr. Anderson noted the applicant's large liver on physical examination. He opined the large liver and heavy smoking were more likely the cause than the work exposure, which he described only as `dubious.' He also thought the applicant could return to his normal work by the time of the examination on September 6, 1996, and his refusal to do so was evidence of some abnormal illness behavior.

"In a follow-up note dated September 18, 1996, Dr. Anderson also interpreted the results of psychological testing. The doctor stated the testing showed significant elements of unresolved anger and rebelliousness, strong paranoid and suspicious thinking, and a substantial degree of peculiar thinking. He thought the applicant would have a propensity to chemical dependency, and might overly focus on physical symptomology.

"Dr. Burwitz' report gives the most credible expert medical opinion on causation. He was the only medical expert whose report and notes go beyond simply noting the applicant's occupation as an auto mechanic, and mention the job duties that affected the applicant's arms and wrists. Dr. Burwitz opined that the applicant's condition was caused by repetitive gripping and use of tools at work, and his treatment notes also indicate he understood the applicant's job to involve repetitive forceful grasping. Indeed, Dr. Burwitz' history is consistent with the applicant's description of the activity causing his injury in the accident report in Exhibit E: repetitive tightening and loosening of automotive fasteners. Dr. Burwitz' opinion is also supported by the statement in the attachment to Dr. Campion's report that carpal tunnel syndrome is cause by repeated forceful motion of the applicant's hands or wrists.

"IME Anderson did observe that the applicant had a large liver and smoked heavily. A layman might infer from the size of the liver that the applicant consumes alcohol to excess and that excessive alcohol consumption causes carpal tunnel syndrome. However, those inferences would be speculative and supported where, as here, Dr. Anderson does not actually opine that the applicant drank to excess or even state that alcohol consumption can cause carpal tunnel syndrome.

"Further, even if the underlying contributors mentioned by Dr. Anderson (smoking and, inferentially, drinking) do exist, they do not automatically rule out work as a material contributory factor. Dr. Anderson does not actually describe the applicant's work duties in terms of the forces they placed on the applicant's arms; he simply observes, as did Dr. Campion, that the applicant was an auto mechanic. While Dr. Anderson does characterize the applicant's duties as `dubious,' the duties include the kind of repeated forceful hand and wrist motion which, according to the attachment to Dr. Campion's practitioner's report, causes carpal tunnel syndrome.

"The fact that the applicant's symptoms were bilateral while the applicant was dominantly right-handed cannot be overlooked. Dr. Anderson's report suggests that, if the applicant's carpal tunnel syndrome were caused by work activity, one would expect the applicant's right hand symptoms to be greater, and arise sooner, than the left hand symptoms. Of course, the applicant did use his left hand for forceful gripping and pushing on wrenches to some extent, and probably did more so after his right hand became symptomatic. Further, Dr. Campion's surgical notes described the median nerve in the applicant's right arm to be `quite constricted and hyperemic [unusually red] appearing' and remaining adherent to the ligament requiring special attention, whereas the applicant's median nerve in the left arm was only `quite compressed appearing.'

"In short, Dr. Burwitz' expert medical opinion is accepted as more credible than that of Dr. Anderson. The applicant has established that a material period of work exposure was at least a material contributory factor in the onset or progression of his bilateral carpal tunnel syndrome. In other words, the applicant has established an injury arising out of his employment with the employer, sustained while he was performing service growing out of or incidental to that employment."

ORDER

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

Dated and mailed: October 29, 1998
knuthva.wmd : 101 : 7 ND § 5.8  § 5.10

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

James A. Rutkowski, Commissioner


MEMORANDUM OPINION

The employer and insurer (collectively, the respondent) appeal. The respondent argues first that the record does not support a finding of causation, noting that neither treating doctor really discussed work duties in detail. It also points out that neither treating doctor specifically discussed the possible systemic problems (associated with heavy smoking and a large liver) identified by IME Anderson. The respondent also points out that the applicant's problems are bilateral, even though he used his dominant right arm much more often than his left. Further, the respondent also questions the ALJ's conclusion that the compression observed in the median nerve ruled a systemic cause of the carpal tunnel syndrome, as no medical expert expressed that conclusion. The commission has addressed these issues, which all deal with causation, in the material inserted into the ALJ's decision by amendment.

The respondent goes on to suggest the applicant stopped healing well before January 1997. It notes the restrictions and pain complaints have been substantially the same since at least September 1996. It also suggests his complaints were due to failure to follow doctor's orders. Finally, the respondent cites evidence in the record pointing out that the applicant has not sought gainful employment. Lastly, the respondent questions the one percent permanent partial disability rating given by Dr. Campion, which it describes as equivocal, and based on subjective complaints on problems in the ulnar nerve distribution not affected by carpal tunnel syndrome.

An injured worker's healing period ends when all the improvement to a work-related injury that is likely to occur has occurred. Larsen Co. v. Industrial Commission, 9 Wis. 2d 386, 392 (1960). The respondent argues that that point seems to have occurred well before January 27, 1997.

However, the commission has consistently held that a treating doctor cannot set a healing plateau date retroactively, even if he subsequently comes to believe that healing had ended earlier than he thought at the time. McKee v. Blain Supply Co., WC Case no. 96010861 (May 28, 1998); Onalaska Mobile Home Sales v. DILHR, Inc., WC Case no. 7-CV-426 (Wis. Cir. Ct. La Crosse County, February 25, 1980); and Neal & Danas, Workers Compensation Handbook, § 5.8 (4th ed., 1997). While the respondent questions Dr. Campion's January 27, 1997 plateau date in hindsight, he had more familiarity with the day-to-day progress of the applicant's condition than Dr. Anderson and gave the more credible opinion on when the end of healing occurred. Finally, the commission concludes that exceeding treating Dr. Campion's restrictions, to the extent the applicant exceeded them, is not a valid basis for ending temporary disability in this case, especially since IME Anderson told the applicant he could return to work without restriction.

Further, willingness to work in and of itself does not decide the healing plateau which is a medical question. It is true that if an employer offers work within restrictions during the healing period, and the applicant unreasonably refuses it, the commission may reduce temporary disability based on the wage that could have been earned. See Wis. Admin. Code § DWD 80.47; Wellsandt v. Chippewa County, WC Claim no. 93050745 (November 28, 1997); and Neal & Danas, supra, at § 5.10. But no such work was offered here.

Nor is the commission inclined to reverse the permanent partial disability award. It is clear that Dr. Campion realized the ulnar nerve symptoms had a different cause than the carpal tunnel condition which causes median nerve problems, and factored that into his calculation of permanent disability. Further, a minimal rating of permanent partial disability at one percent compared to amputation at the wrist is by no means out of line for subjective pain symptoms, especially since doctors agree the applicant suffered from carpal tunnel syndrome.

cc: ATTORNEY BETH RAHMIG PLESS
DENISSEN KRANZUSH MAHONEY & EWALD SC


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