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

SAYOOMPORN OSTRUM, Applicant

ORE IDA FOODS INC, Employer

LIBERTY MUTUAL INSURANCE CO, Insurer

WORKER'S COMPENSATION DECISION
Claim No. 89024090

The administrative law judge issued his Findings of Fact and Interlocutory Order in this case on September 7, 1994, following a hearing on August 8, 1994. The employer and the insurer (collectively, the respondent) have submitted a petition for commission review of the administrative law judge's Findings and Order. Thereafter, both the respondent and the applicant submitted briefs.

Prior to the hearing, the respondent conceded jurisdictional facts, an average weekly wage of $312, and an April 13, 1989 compensable injury. The respondent conceded and paid temporary disability for various periods through February 15, 1992, as well as permanent partial disability at 20 percent compared to amputation at the left shoulder amounting to $12,500.

The issues are the nature and extent of disability beyond that conceded, specifically permanent disability.

The commission has carefully reviewed the entire record in this case, including the briefs submitted by the parties. After consulting the administrative law judge concerning the credibility and demeanor of the witnesses, the commission hereby sets aside his findings of fact, conclusions of law and interlocutory order, and substitutes the following therefor:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

1. Facts.

a. General facts and medical treatment.

The applicant was born on April 4, 1955. She is a U.S. citizen born and educated in Thailand who speaks but cannot write English. She is left handed.

The employer has conceded an April 13, 1989 work injury. The applicant claims she is totally and permanently disabled on a vocational or "odd-lot" basis from thoracic outlet syndrome caused by work.

The applicant began working for the employer in May 1979. Her duties primarily were to trim bad spots off potatoes with a small knife. She worked at least 5 days per week, and sometimes 6 or 7 days in the summer. She performed this job until September 1990, and has not worked since, except for a few days when she tried to return following her injury.

The applicant began experiencing pain in her left arm in 1986 when she reported arm, hand and finger numbness to her employer. She had a normal EMG and x-ray at the time, and returned to her potato trimming job. She continued to experience mild symptoms.

In 1989, the applicant again sought medical treatment complaining of increased pain and numbness in the left hand and wrist, radiating to the shoulder and neck. During the course of treatment over the next several months, positive Tinel's and Phalen's signs were noted, as was a positive Finkelstein's test. Mild carpal tunnel syndrome was diagnosed. She was given wrist splints and anti-inflammatories which helped relieve, but did not eliminate, the pain. Because her symptoms did not resolve with conservative treatment, a carpal tunnel release was performed in her wrist on April 24, 1989.

The applicant returned to her potato trimming duties six weeks after the carpal tunnel surgery, but continued to complain of pain. Her symptoms included pain in the left elbow and shoulder, with tenderness and spasm noted in the trapezius in February 1990. Physical therapy was prescribed, and she continued to work.

The applicant then saw Y.H. Gabriel, M.D., in August 1990. He noted the carpal tunnel surgery in 1989, and some improvement thereafter, with residual pain in the left hand and forearm. He went on to note that the condition worsened substantially in the preceding two months. At the time of her visit the applicant complained of pain in the left side of her neck, her left shoulder, left arm, forearm, wrist and hand, as well as numbness in her left hand. Dr. Gabriel described her symptoms generally as substantial upper left extremity pain. He initially diagnosed either recurrent left-sided carpal tunnel syndrome or cervical radiculopathy with nerve root compression.

A cervical spine MRI done in September 1990 was normal and nerve conduction tests were reported by Dr. Gabriel as "nondiagnostic." He diagnosed left ulnar nerve compression at the elbow, though, and took her off work. Dr. Gabriel performed an ulnar nerve release surgery at the elbow in the fall of 1990.

The applicant experienced some improvement, but continued to note intermittent pain and discomfort in various parts of her body including shoulder, wrist, arm and elbow. Dr. Gabriel ordered physical therapy about this time. The applicant remained off work.

Dr. Gabriel's notes suggest that the applicant had returned to work part-time by December 1990. He recommended that she quit her job with the employer if she wanted to become symptom-free. However, on December 4, he released the applicant to return to Ore-Ida on December 31, 1990, at her request. He later retracted his release, and told the employer on December 17 that the applicant should not return to her full-time job. He opined on December 21 that she should never return to highly repetitive work.

In April 1991, the applicant continued to report pain from the left side of her neck which radiated through her arm to the fingers of her left hand. Dr. Gabriel began to wonder about sympathetic dystrophy "simply because of the fact she has remained in pain in spite of being off work for more than 6 months now." He prescribed stellate ganglion blocks by injection which did little good.

In June of 1991, the applicant began treating with Ivan Stanko, M.D., a colleague of Dr. Gabriel. He noted symptoms of:

"rather diffuse tenderness affecting the left side of the neck, left armpit, and the whole arm. This is worse in the neck and shoulder and armpit area than it is in the elbow and hand area."

Dr. Stanko stated that this was a confusing presentation, noted the possibility of reflex sympathetic dystrophy, and ordered rheumatoid tests.

The applicant continued to complain of pain throughout 1991 and Dr. Stanko noted problems with medication. On December 30, 1991, he noted constant pain, numbness in both hands, and that her left hand was cold. He stated:

"More and more am I convinced that [the applicant's] problem represents a thoracic outlet syndrome. ... Before anything else, I would like to obtain evoked potentials for the thoracic outlet. ... The thoracic surgery referral will be considered at that point."

The "evoked potentials" came out as normal, but Dr. Stanko continued to believe the applicant had thoracic outlet syndrome. He referred her to a surgeon, Nicholas C. Bosch, M.D.

Dr. Bosch examined the applicant on January 29, 1992. He noted a long-standing history of discomfort, numbness, coldness and other neurological symptoms involving her left upper extremity, shoulder, and left lateral neck. He also noted occasional left-sided headaches. He noted the prior carpal tunnel surgery, ulnar nerve release surgery, ganglion blocks and physical therapy, all of which were unsuccessful. He noted the temperature of her left arm was grossly normal. He concluded:

"History is certainly compatible with a thoracic outlet syndrome.

"Discussed with her and her husband the impossibility of proving this pre-operatively but suggested she had an approximately 3 in 4 chance of improving her symptoms with a first rib resection (and cervical rib if present of course). There is about a 1% chance of complications.... I get the impression she is fearful of having surgery...."

b. Opinions of medical experts.

Meanwhile in November 1989, the insurer referred the applicant to John B. Toussaint, M.D., for an independent medical examination. He noted the post-surgery carpal tunnel syndrome and cubital tunnel syndrome. He also diagnosed an unidentified cervical region pathology to account for her continuing complaints. He related the first two conditions and possibly the third to work, and recommended further investigation at the Marshfield Clinic.

Thereafter, the applicant was seen by Samuel Idarraga on February 4, 1992, on referral by the insurer. He noted a chief complaint of pain in the neck and the entire left upper extremity. He noted her previous treatment. He also noted that her left arm had a decreased temperature compared to the right, and a limited range of motion because of complaints of pain. His impression was:

1. Chronic shoulder, hand and neck pain syndrome.

2. Status post release of left median nerve at wrist and left ulnar nerve at the elbow.

3. History of tension headaches, chronic.

Dr. Idarraga recommended "a great deal of counseling and guidance" to help the applicant increase the use of her left arm gradually. Essentially, he recommended that she increase her function gradually, rather than try more physical therapy alone which might aggravate her condition. He stated she did not show serious sequelae of reflex sympathetic disorder, and stated her prognosis was good with proper guidance. Dr. Idarraga concluded by rating her permanent partial disability at 20 percent compared to loss of function at the shoulder.

Thereafter, the applicant's compensation for temporary disability was ended and she was discharged by the employer in mid-February 1992.

The applicant returned to Dr. Stanko on February 28, 1992. He issued a practitioner's report dated March 2, 1992, restating his opinion that she had thoracic outlet syndrome caused by work. He attached a note indicating he was disturbed that Dr. Idarraga did not agree with the diagnosis or recommended surgery. However, Dr. Stanko agreed that she would have "a PPD rating of 20 percent" if she did not seek treatment. On the other hand he disagreed with Dr. Idarraga's opinion that she would improve without surgery and stated that, if anything, the opposite was true. He stated that there was an excellent chance that the thoracic outlet surgery would improve her condition. On the practitioner's report form itself, he simply indicated "20%" when asked to rate disability.

Dr. Stanko also completed a functional capacity report dated March 2, 1992. The report released the applicant to eight-hour work days, but stated that her left arm was totally nonfunctional. Dr. Stanko noted restrictions against repetitive grasping, pushing/pulling, and fine manipulation with the left hand, but no such restrictions with respect to the right hand. He also totally prohibited the applicant from lifting with the left hand, or from climbing.

Dr. Stanko wrote another letter on April 30, 1992, stating that he thought she had 20 percent permanent partial disability compared to disability to the body as a whole, not compared to amputation of the shoulder. He also submitted a letter in October 1992 stating:

"The thoracic outlet syndrome is a clinical diagnosed [sic] on the combination of symptoms and signs. It represents a tightness in the region of the armpit where the nerve roots enter the arm from the neck and the large vessels under the arm from the chest. As some tightness in that area develops, it can produce symptoms of the nature Mrs. Ostrum has had. It has nothing to do with the wrist. There is no specific test to confirm or rule it out. The diagnosis of the thoracic outlet syndrome is purely a judgment call. Repetitive work with the arm generally can make it worse. I have seen it occur in people who were doing similar type of work this lady has. It is not entirely caused by the work since usually some pre-existing tightness within the thoracic outlet region is necessary. This combined with the repetitive use may produce a sufficient amount of tightness to make the arm symptomatic. The problem is that I don't know how to convince anybody of the diagnosis. The best confirmation of the diagnosis is a cure by surgery. If the surgery cures the symptoms, you know it certainly was a thoracic outlet syndrome. If it doesn't, then the diagnosis was probably incorrect. Since the lady declined to have surgery, I don't have any other way of proving it.

"Incidentally, I am quite certain that her job has been the primary cause of her symptoms, whether it is a thoracic outlet syndrome or not."

Exhibit D.

The applicant then returned to Dr. Idarraga for an examination on April 26, 1993. In a narrative report prepared that day, Dr. Idarraga noted Dr. Stanko's additional treatment and observations. He again noted that the left hand was colder than the right. However, Dr. Idarraga restated his impression of chronic left upper extremity and neck pain syndrome and status post carpal tunnel and ulnar nerve release surgeries. He could find no explanation for the degree of symptomology. He described her condition as simply chronic pain syndrome affecting her left upper extremity and the left side of her neck.

Dr. Idarraga went on to opine that the applicant had reached a healing plateau. He stated he had no objective diagnosis and stated the applicant's chronic pain and disability went far beyond his objective findings. He recommended no further treatment, except at a pain clinic, and he referred her specifically to S.V. Vasudevan, M.D.

Dr. Idarraga also completed a work capacities evaluation on April 26, 1993. The work capacities evaluation stated that the applicant was not limited at all in sitting, standing, walking or driving; could occasionally bend, squat or climb; could never crawl, work overhead or work at shoulder level; could use her right hand for any activities; could use her left hand for grasping and fine manipulation, but not pushing and pulling; and "must keep her left arm activities to below chest level!" He concluded by noting that the applicant might have to work part-time at first and gradually work up to full-time at the rate of an hour per day per week. Exhibit 4.

c. Treatment with Dr. Vasudevan.

The applicant then saw Dr. Vasudevan in August 1993. He noted the carpal tunnel and ulnar nerve release surgeries, and diagnosed myofascial pain syndrome of the left scapular muscles, reflex sympathetic dystrophy syndrome - left upper extremity, and depression. The consulting psychologist who worked with Dr. Vasudevan noted that the applicant's left hand was much cooler than the right, 78 degrees as compared to 87.1 degrees, providing some objective support for a left arm pathology. Dr. Vasudevan indicated that the applicant considered herself disabled and illness-focused. He did not hold out much hope for improvement from treatment, but recommended she attend his in-patient pain clinic anyway. See the last 5 pages of Exhibit 2.

The applicant then was admitted to the pain clinic for in-patient treatment on November 15, 1993, and stayed for a week. A nerve conduction test done during her stay showed no evidence of residual carpal tunnel syndrome, cubital compression syndrome, or brachiopathy. He also noted no evidence of hypersensitivity, dysethesia or swelling in her left hand. He did note that her left hand continued to be cooler than the right.

Dr. Vasudevan's discharge summary indicates that the applicant continued to be focused on her pain and relief of symptoms by medication. She participated only minimally in the pain management program, and did not do any of the recommended therapy. She explained that she had tried to increase the use of her left arm, that it did not work, and that it only resulted in pain. Dr. Vasudevan questioned her motivation for improvement and expressed reservations about long-term use of pain medication.

Dr. Vasudevan opined that the applicant had a 20 percent permanent partial disability compared to amputation at the elbow. This rating was based on tenderness along the ulnar nerve scar, and the coolness in her arm which the doctor associated with reflex sympathetic dysfunction. He also opined she had reached an end of healing. Dr. Vasudevan released the applicant to work with the following limitations: could only do one-handed work using the left hand only as an assist; should not work in a cool environment; and encouraged over-the- shoulder activities and increase neck range motion. Dr. Vasudevan specifically states she could not return to her potato trimming work.

2. Discussion.

The commission finds the opinion of treating doctor Stanko most credible as to the diagnosis. Dr. Stanko treated the applicant over the course of several months. His diagnosis was confirmed by Dr. Bosch. Further, given the years of highly repetitive work done by the applicant, Dr. Stanko's opinion that her disability from this condition was caused by the applicant's work with the employer is quite credible. It is also supported by the opinion of Dr. Toussaint.

The respondent argues that Dr. Stanko is only guessing in his diagnosis. It is true that Dr. Stanko stated that the diagnosis may be proven only by a successful surgery which cures the condition. On the other hand, many diagnoses are reached by considering symptoms and excluding more likely possibilities by unsuccessful treatment. Medical diagnoses are therefore based on reasonable degrees of medical certainty or probability, not on absolute certainties. Further, as far as the commission can tell, none of the other doctors offer diagnoses that can be absolutely confirmed or disproven by objective means.

However, an indisputable diagnosis of the condition causing disability is not necessary for an applicant to establish a compensable disability. The primary requirement is that the work injury caused disability, and the commission is not left with a legitimate doubt that that has been shown in this case. The commission thus turns to the questions of the nature and extent of disability caused by the work injury in this case.

The doctors agree that the applicant has permanent disability on a functional basis. The first issue is whether the applicant has sustained a scheduled disability, an unscheduled disability, or both. Sections 102.44 (3) and 102.52 to 102.56, Stats. This issue is discussed in Neal & Danas, Worker's Compensation Handbook, sec. 5.18 (3d ed. 1990). As the authors point out, whether the permanent disability schedule under sec. 102.52, Stats., applies is determined by the location of the disability, not the location of the injury.

Further, the schedule in sec. 102.52, Stats., is usually considered exclusive, so that if a disability is covered under it, additional permanent disability for loss of earning capacity may not be recovered. An exception to this rule was suggested by the supreme court where loss or disability to a scheduled part extends to another, unscheduled part of the body and interferes with its efficiency. Mednicoff v. DILHR, 54 Wis. 2d 7, 15 (1972). In addition, certain multiple scheduled disabilities may result in permanent and total disability under sec. 102.44 (2), Stats.

The commission concludes the record best supports a finding of a scheduled disability, rated by comparison to amputation of the left arm at the shoulder. Dr. Stanko originally stated that he agreed with the "20 percent of permanent partial disability" assessed by Dr. Idarraga, assuming the applicant had no surgery. Dr. Idarraga, of course, assessed permanent disability compared to amputation of the shoulder at the arm; that is, a scheduled disability. While Dr. Stanko later stated his 20 percent rating compared to the body as a whole, the fact remains that his March 2, 1992 functional capacity report essentially limits only left-handed activities. Indeed, the report states the right arm was good, but the left was totally nonfunctional.

Having concluded the applicant's permanent partial disability is compensable under the schedule in sec. 102.52, Stats., the commission turns to the question of extent of disability. On this point, the commission finds credible Dr. Stanko's opinion that the applicant's left arm is totally nonfunctional. It therefore concludes that the applicant has sustained permanent partial disability at 100 percent compared to amputation of the left arm at the shoulder.

The commission cannot credit the lesser estimates of disability given by Drs. Vasudevan and Idarraga. Dr. Vasudevan's rating of 20 percent at the elbow is undercut by his restriction against using the left hand as anything but an assist. Dr. Idarraga's rating of 20 percent at the shoulder is undercut by the fact that he expected improvement in his February 1992 report. The rating is also undercut by his statements that the applicant should keep her activities below chest level, that she could not use the left hand for pushing and pulling, that she should do only sedentary work.

The decision of the administrative law judge indicates that the parties stipulated to a February 11, 1992 healing plateau date. This date is reasonable in light of Dr. Idarraga's February 4, 1992 report and Dr. Stanko's March 2, 1992 note. It also means that the respondent overpaid 5 days of temporary total disability which shall be deducted from her award for permanent partial disability.

3. Calculation of disability.

The commission therefore finds that the applicant was overpaid temporary total disability from February 11 through February 15, 1992, both dates inclusive. This results in an overpayment of 5 days of temporary total disability compensated at the weekly rate of $208 (two-thirds of the conceded average weekly wage of $312), for a total of $173.33.

The applicant has also sustained a permanent partial disability of 100 percent compared to amputation of the left arm at the shoulder, accruing as of February 11, 1992. The applicant is thus entitled to 500 weeks of permanent partial disability benefits at the statutory maximum for injuries occurring in 1989, $125 per week.

This results in a total award for permanent partial disability of $62,500, of which $12,500 (100 weeks) has previously been conceded and paid, for a total additional award of permanent partial disability of $50,000 (400 weeks). As of June 8, 1995, a total of 321 weeks of permanent partial disability have accrued, amounting to a total of accrued permanent partial disability benefits of $40,125. By the same token, 221 weeks of the additional permanent partial disability awarded under this order have accrued, amounting to a total of additional accrued benefits of $27,625.

The applicant also approved an attorney fee of 20 percent under sec. 102.26, Stats. The percentage fee is based on the additional compensation for permanent partial disability awarded under this decision, less the amount of compensation for temporary total disability overpaid. The total fee is thus $9,965.34 {20 percent of ($50,000 minus $173.33)}. Of that amount, only the fee attributable to the first 221 weeks of additional permanent partial disability, less the overpayment of temporary disability, has yet accrued. The fee attributable to the remaining 179 weeks ($4,475) remains unaccrued and is subject to an interest credit of $500.70. Deducting the interest credit from the total attorney fee leaves a net fee which reflects its present value of $9,464.64. This shall be deducted from the applicant's total award and paid to her attorney within 30 days.

The amount due to the applicant within 30 days is $21,961.34. This is determined by starting with the total permanent partial disability benefits accrued to June 8, 1995 ($40,125), less the permanent partial disability benefits already conceded and paid ($12,500), less the temporary total disability benefits overpaid ($173.33), and less the part of the attorney fee for benefits accrued to June 8, 1995 ($5,490.33), leaving the sum of $21,961.34.

The amount remaining to be paid to the applicant as it accrues beginning on July 8, 1995 is $17,900. This is determined by starting with the unaccrued permanent partial disability, which equals the total award for permanent partial disability ($62,500), less the total amount of permanent partial disability accrued to June 8, 1995 ($40,125), leaving the remainder of $22,375. From the unaccrued permanent partial disability ($22,375) must be subtracted the unaccrued portion of the attorney fee without deducting the interest credit ($4,475), leaving $17,900 remaining to be paid. This amount shall be paid to the applicant in monthly installments of $541.67, beginning July 8, 1995.

Jurisdiction is reserved for recalculation of sums due based on the social security offset under sec. 102.44 (5), Stats., if appropriate.

NOW, THEREFORE, the Labor and Industry Review Commission makes this

INTERLOCUTORY ORDER

The decision of the administrative law judge is modified to conform to the foregoing and, as modified is affirmed.

Within 30 days from the date of the decision, the employer and its insurer shall pay all of the following:

(1) To the applicant, Sayoomporn Ostrum, the sum of Twenty-one thousand nine hundred sixty-one dollars and thirty-four cents ($21,961.34) for compensation for disability.

(2) To the applicant's attorney, Curtis Kirkhuff, the sum of Nine thousand four hundred sixty-four dollars and sixty-four cents ($9,464.64) as attorney fees.

Beginning on July 8, 1995, and continuing on the eighth day of each month thereafter, the employer and the insurer shall pay the applicant Five hundred forty-one dollars and sixty-seven cents ($541.67) per month until the sum of Seventeen thousand nine hundred dollars and no cents ($17,900.00) has been paid.

Jurisdiction is retained to issue further orders as are consistent with this decision.

Dated and mailed June 1, 1995
ND § 5.18

Pamela I. Anderson, Chairman

Richard T. Kreul, Commissioner

James R. Meier, Commissioner

MEMORANDUM OPINION

The respondent raised two issues in its petition that were not discussed above. The first concerns an offer of work in February 1994 removing staples, shredding paper and making microfilm copies made by the employer. The applicant tried the work for a part of one day, but contends it was not within her restrictions. The employer's occupational health nurse admitted the applicant tried the work and did not appear malingering. The nurse thought the applicant could have done the work if she worked at her own pace, and Dr. Vasudevan opined the work was within the applicant's restrictions.

After reviewing the videotape, the commission was inclined toward the applicant's position that the job offer was not within her work restrictions. However, since the applicant's temporary disability had ended as of February 1994, and because the commission concludes that the applicant's disability is scheduled and thus not subject to sec. 102.44 (6)(a), Stats., the commission does not make findings on this issue.

The last issue is whether the applicant's right to receive compensation is barred or otherwise affected by her refusal to undergo the thoracic outlet surgery suggested by Drs. Stanko and Bosch. On the one hand, the department's practice, described in Neal & Danas, Worker's Compensation Handbook, sec. 5.46 (3d ed. 1990), is to not require any surgery if it involves general anesthesia. However, a case the respondent cites in its brief supports the respondent's position. Lesh v. Illinois Steel Co., 163 Wis. 124 (1916). More recently, though, the supreme court has held that this defense only applies when the respondent has offered to pay for or provide the treatment. Klein Industrial Salvage V. ILHR Department, 80 Wis. 2d 457, 463-65 (1977).

In this case, no offer to pay for the surgery was ever made. Indeed, the respondent's own independent medical examiner challenged the diagnosis on which the recommendation for surgery is based, and the respondent continues to dispute the diagnosis even in its petition. Stated simply, while the commission is satisfied that the applicant has a permanent disability at 100 percent compared to amputation at the arm, it is less certain that the recommended surgery under general anesthesia will correct the disability.

The commission conferred about witness credibility and demeanor with the administrative law judge who presided at the hearing. Transamerica Ins. Co. v. ILHR Department, 54 Wis. 2d 272, 283-84 (1972). The administrative law judge found the applicant to be a credible witness, and specifically noted that she held her left arm still throughout the hearing and could not appear to move it normally. The commission does not dispute the administrative law judge's impression of the credibility of the applicant or the other witnesses who appeared before him, but rather believes the medical records and reports better support a finding of scheduled disability.

cc: ATTORNEY CURTIS M KIRKHUFF
PELLINO ROSEN MOWRIS & KIRKHUFF SC

ATTORNEY THOMAS W BERTZ
ANDERSON SHANNON OBRIEN RICE & BERTZ

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