Wis.LIRC WC Decision: Premeau - June 30, 1999 - ND � 8.28 - Rules of Evidence - no error in admission into evidence of surveillance videotape applicant was not made aware of prior to the hearing; there is no prehearing discovery in worker's compensation procedure and employer was not required to disclose the contents of the surveillance videotape prior to the hearing

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

LINDA PREMEAU, Applicant

NITE CAP INN, Employer

MILWAUKEE MUTUAL INS CO, Insurer

WORKER'S COMPENSATION DECISION
Claim No. 1997010996

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 30, 1999
premeau.wsd : 175 : 5 ND � 8.28

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

The applicant asserts in her petition for commission review that the administrative law judge erred in determining that she was not entitled to further permanent partial disability of more than one percent at the right wrist and one percent at the right shoulder as a result of her work injury. The applicant contended at the hearing that she is entitled to 20 percent permanent partial disability at the right shoulder and 10 percent at the right wrist based on Dr. Nichols' assessment in his WC-16-B dated March 12, 1998. However, Dr. Brown who examined the applicant on behalf of the employer opined that as a result of the work injury on January 29, 1997, that the applicant sustained a right interarticular distal radius fracture, as well as a contusion of the right shoulder and rotator cuff tear. Dr. Brown opined that the applicant reaching a healing plateau as of December 19, 1997, and that his only treatment recommendation would be continued use of home heat with range of motion and strengthening exercises, and he assigned one percent permanent partial disability at the right shoulder given the applicant's range of motion since the applicant has greater motion than that provided under the five percent impairment but that she will have a mild should weakness. In addition, Dr. Brown assessed the applicant with a one percent permanent partial disability at the wrist due to mild diminished wrist range of motion. The employer also presented evidence of the applicant's prior right shoulder extremity and diverse medical complaints in the early 1990's.

The employer presented evidence of a surveillance videotape which depicts the applicant grooming a horse, as well as lifting garbage bags and a garbage can, and lifting the hood of a car and using her right hand to tug on the lead line of a horse as well as opening a door with her right hand. The applicant contended in her testimony that at the time of the hearing her wrist was painful and her grip was bad, and that she had loss of motion and she cannot do anything with it. The applicant testified that she has pain all the time and that it hurts more in the damp or cold weather and that she cannot lift as much and that she had no similar problems prior to the injury.

The applicant contends in her petition for commission review that the administrative law judge erred in admitting the videotape into evidence. The applicant contends that the administrative law judge erred since the applicant was not made aware of the videotape prior to the hearing. However, there is no prehearing discovery in worker's compensation procedure and the employer was not required to disclose the contents of the surveillance videotape prior to the hearing. The commission does not find that the administrative law judge erred in admitting the surveillance videotape into the record.

The commission agrees with the administrative law judge that the contents of the videotape do indicate that the applicant is not as disabled as she claims. The applicant testified at the hearing that she is unable to do many things and that she is in constant pain and that her wrist is painful and her grip is bad, and that she cannot do anything with it when clearly she was using her right wrist in performing the grooming activities and to control the horse with the lead line as well as to lift the car hood and other activities depicted in the videotape.

The evidence is not clear that Dr. Nichols was aware of the applicant's prior complaints and treatment for her right shoulder, neck and arm complaints prior to the work injury as well as her generalized claims of disability. The commission credits Dr. Brown's assessment that the applicant reaching a healing plateau as of December 1997 following her surgeries and that she will have residual restrictions but that she suffered no more than one percent permanent partial disability at the right shoulder and one percent permanent partial disability at the right wrist as a result of her work injury in January 1997.

cc: Attorney Russell W Devitt
Soffa & Devitt

Attorney Ronald S Aplin
Coyne Niess Schultz Becker & Bauer SC

Appealed to Circuit Court. Affirmed November 22, 1999. Appealed to Court of Appeals. Affirmed per curiam January 11, 2001.

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