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

JOSEPH KUGEL, Applicant

RIVERWOOD INTERNATIONAL CORP, Employer

TRAVELERS INDEMNITY CO OF IL, Insurer

WORKER'S COMPENSATION DECISION
Claim No. 1998022165

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 June 21, 2000
kuglejo.wsd : 101 : 5  ND § 3.4  § 5.24

/s/ David B. Falstad, Chairman

Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

The applicant, who was born in 1947, has worked for the employer (in its various corporate identities) for 26 years, or since the mid-1970s. The employer makes beer carriers. The applicant has been a maintenance technician since 1981.

The applicant's job involves working with wrenches, saws, grinders, air tools, ratchets, hammers, screw drivers and pliers. He has had to move objects weighing 150 pounds or more. His testimony indicates that the most difficult duty with respect to his shoulder was loosening nuts with a wrench or nut breaker. Sometimes, this job requires three people pulling on a 12-inch pipe. Beyond that, of course, the applicant's job as a maintenance technician is clearly a "hands-on" kind of job.

In his application for hearing, the applicant seeks compensation for disability and medical expenses based on May 15, 1997 date of injury. The applicant's theory of the case is that his continued work exposure following a shoulder injury in March 1985 led to additional shoulder disability in 1997. The ALJ found an injury caused by occupational disease with a July 18, 1997 date of injury based on the last day of work in employment contributing to the disease. She paid temporary disability, permanent partial disability at 10 percent related to loss of an arm at the shoulder, and medical expenses.

The employer and insurer (collectively, the respondent) appeal. The respondent contends that if the applicant's disability arises from occupational disease (as the ALJ found), the correct date of injury is back in March 1985. It also contends the award for permanent partial disability is too high.

In explaining the basis for the commission's decision to affirm the ALJ's decision, the commission begins with the opinions of the medical expert. In a note for her final evaluation in May 1998, treating doctor Duck noted that the applicant had initially presented to her in May 1997 with a diagnosis of rotator cuff tendinitis and impingement overuse, but that it became evident that he was having bicipital problems, too. She noted his history of surgery with slow improvement. She also noted that he was again working full time, though still having aching in his shoulder particularly with reaching and sometimes with pulling and pushing. She noted the applicant took over-the-counter medications and that massage was no longer very helpful.

Dr. Duck's diagnostic impression was status post biceps tenodesis with continued rotator cuff tendinitis and symptoms of trapezial pain. She thought intermittent massage therapy would benefit the trapezius region. Her final assessment was an overall permanent partial disability of 12 percent, apparently compared to amputation at the shoulder, based on decreased range of motion, decreased strength, and continued pain symptoms. However, she did not set permanent work restrictions, other than to be careful with repetitive overhead work. See exhibit B.

In a practitioner's report dated April 10, 1998, Dr. Duck opined that the applicant was temporarily disabled from July 21 to December 22, 1997, as a result of the right shoulder condition. She also noted that work activities while working for the employer were a material contributing factor to his right shoulder condition.

The respondent offers two reports from independent medical examiners. The first is from Stephen Weiss who examined the applicant on November 25, 1997. Dr. Weiss offered the following synopsis of the medical record:

"[The applicant] is a gentleman who has had pain in both upper extremities. He had an injury to his right shoulder primarily in 1985, and has had pain in his shoulder and elbow intermittently since 1993 or 1994. He has undergone a Nirschl procedure for lateral epicondylitis in April of 1996, and was returned to full work several months later following a normal examination. He also underwent surgery for his shoulder complaints in July of 1997, in which a bicipital tenodesis and subacromial decompression was performed. The claimant does have a mild restriction of motion, minimal supraspinatus atrophy and secondary scapular winging and some mild forearm and arm atrophy on the right side."

Exhibit 3, page 6.

Dr. Weiss's diagnosis was status post Nirschl procedure for lateral epicondylitis; bilateral status post bicipital tenodesis and decompression of the right shoulder. He thought the applicant would reach a plateau of healing from the right shoulder surgery by six months after the procedure, or January 21, 1998. He set work restrictions against overhead work or lifting more than 15 pounds with the right arm. Dr. Weiss thought it too early to rate permanent disability (consistent with his opinion that a healing plateau had not been reached.) However, he also thought further treatment was not necessary. Regarding causation he stated:

"Although the claimant indicates that he does a lot of physical work with both upper extremities, with the exception of the 1985 incident, there is nothing that specifically can be considered to be causative of the claimant's complaints. Furthermore, although he does indicate that he does a variety of activities, he does not have the constant frequency or repetitiveness that would be necessary for the impingement syndrome to be work-related or for a lateral epicondylitis to be work-related."

Exhibit 3, page 7.

The respondent also retained Mark R. Aschliman, M.D., who examined the applicant on November 18, 1998. His diagnostic impression was chronic bilateral rotator cuff impingement and bicipital tenosynovitis, for which the applicant had undergone surgery on the right. Dr. Aschliman opined that the applicant's treatment by Dr. Duck had been appropriate, given the applicant's condition. However, in the absence of any event or injury at work on May 15, 1997 (the day the applicant returned to Dr. Duck with increased symptoms), the thought all that occurred was a noncompensable manifestation of symptoms from a pre-existing condition. He did not think ongoing treatment was necessary.

Regarding causation and date of injury, Dr. Aschliman reports:

"With the information available, it is my opinion the shoulder condition on the right is a progressive degenerative condition not directly caused by or aggravated by his employment activities. With specific attention to the May 15, 1997, claim, there is no evidence of any specific accident or injury occurring, neither is there any evidence that the industrial activities of the examinee about this time were a material contributory causative factor in his need for surgical intervention. As such, the right shoulder condition is considered non-industrial in its origin. Similarly, the left shoulder condition, I believe, is non-industrial in its origin.
". . .
"I do not believe that there was any injury on May 15, 1997. The medical records do not support this, and Mr. Kugel states that no injury occurred. Mr. Kugel also stated that there was no specific injury in the recent past relative to the May 15, 1997 date. He relates that he did sustain an injury in 1985. There is not enough information to determine whether the conditions of the right and left shoulder related directly to this prior injury."

Exhibit 1, report of Aschliman, page 6.

Was the applicant's work exposure though July 18, 1997 a material contributory causative factor in the progression of his condition? Like the ALJ, the commission concludes it was.

The applicant clearly has shoulder problems which are disabling. Both Drs. Aschliman and Weiss agree with that. The applicant's problem may have started in 1985, but the applicant was able to work until 1997. His work as a maintenance technician is strenuous; from a lay view one can easily see imaging the work could have caused his pre-existing degenerative condition to progress.

The respondent also offers the defense that, if the applicant never actually recovered from the 1985 injury, than there can be no second date of injury based on occupational exposure. The respondent's assertion is based on Eisner v. Wis.-Pak, WC Claim no 87-044815 (LIRC, February 14, 1991), a decision which cites Zurich General Accident Ins. Co. v. Industrial Commission, 203 Wis. 135 (1930) for the proposition that there may be multiple dates of injury in an occupational disease case.

Eisner and Zurich General do contemplate a scenario of exposure, then recovery, then re-exposure to allow a second date of injury. However, that is substantially the situation presented here. The commission reads the applicant's testimony about having the same problem since 1985 to mean that he has had a shoulder problem since 1985. The commission does not read the testimony to mean that the applicant has always had the same level of pain, or that the problem did not stabilize, before becoming disabling to the point of needing surgery with subsequent work exposure in 1997.

Indeed, the medical record shows only treatment for elbow problems between 1985 and 1997. The commission infers from this that the applicant's shoulder problem had plateaued at, or resolved to, at a tolerable level symptoms sometime after 1985, before becoming worse to the point of increased disability with additional work exposure thereafter. Certainly, the report of Dr. Weiss indicates improvement after the 1985 injury. In addition, while the applicant no doubt had continuing shoulder problems after 1985, he was able to work without apparent restriction related to the shoulder, until 1997.

The commission also considered the respondent's argument that the ten percent permanent partial disability at the shoulder the ALJ awarded (after reducing treating doctor Duck's twelve percent rating) is too high, given the absence of permanent work restrictions set by Dr. Duck. First, of course, Dr. Duck did recommend the applicant be careful about overhead work. Moreover, work restrictions are not necessarily what decides permanent partial disability on a functional basis; instead permanent disability ratings are based on loss of motion, loss of endurance and pain. These factors are cited in the How to Rate Permanent Disability Handbook (WKC-7761-P (R.10/97) the department provides to assist doctors in arriving at disability ratings, and they are the very factors cited by Dr. Duck in her May 14, 1998 note at exhibit B.

cc: ATTORNEY DENNIS H WICHT
MURPHY GILLICK WICHT & PRACHTHAUSER

ATTORNEY JOHN A GRINER IV
LAW OFFICES OF JOHN J SPINDLER

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