STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION
P O BOX 8126, MADISON, WI 53708-8126 (608/266-9850)
RICARDO DORANTES, Applicant
CONTINENTAL GRAIN CO, Employer
PACIFIC EMPLOYER INS CO, Insurer
WORKER'S COMPENSATION DECISION
Claim No. 1997-06377
The applicant submitted petition for commission review alleging error in the administrative law judge's Findings and Order issued in this matter on May 31, 2000. The employer and its insurance carrier (respondents) submitted an answer to the petition and briefs were submitted by the parties. At issue are nature and extent of disability and liability for medical expense attributable to the conceded work injury occurring on October 3, 1997.
The commission has carefully reviewed the entire record in this matter, and after consultation with the administrative law judge regarding the credibility and demeanor of the applicant, who was the only witness at the hearing, hereby reverses her Findings and Order. The commission makes the following:
FINDINGS OF FACT AND CONCLUSIONS OF LAW
The applicant, whose birthdate is April 4, 1938, was employed as a general laborer for the employer, a grain company. On October 3, 1997, he was picking up pieces of grain from beneath a conveyor belt. This required him to crouch underneath the belt as he moved along picking up the grain. The applicant was "moving very strongly" when he struck his left shoulder on the edge of an angled metal support. He reported the injury to the employer, which sent him to Concentra Medical Center for treatment. The applicant continued to do his work without restriction.
Concentra treated him conservatively but an MRI performed on December 4, 1997, showed rotator cuff tendinitis and a superimposed partial rotator cuff tendon tear. The applicant's shoulder pain continued and on January 19, 1998, he went to Dr. James Stone for a second opinion. Dr. Stone ordered an arthrogram of the shoulder which was positive for a rotator cuff tear. On June 24, 1998, Dr. Stone performed surgical repair of the rotator cuff. The surgery had a beneficial effect but did not relieve all the applicant's symptoms. Dr. Stone assessed 15 percent permanent partial disability at the shoulder, and the applicant also claims temporary total disability from June 24, 1998 to April 12, 1999. He had been released to light duty in December 1998, but that was during seasonal layoff. The successor company to the employer hired him back to his old job on April 12, 1999. Currently, he has shoulder pain but is able to work.
Dr. Stone completed a WC-16-B in which he checked the direct causation and occupational disease causation boxes. His note of January 19, 1998, recounts how the work injury occurred. The applicant had no preexisting shoulder symptoms.
At respondents' request, Dr. David Zeman examined the applicant on March 27, 1998, and opined that the work incident caused, at most, a contusion of the applicant's left shoulder. He explained his opinion by stating that the mechanism of injury did not include any force being held or sustained by the left arm, and that the left arm was not in any stressful position and did not go through any stressful motion in the course of the injury process. Dr. Zeman found the applicant had reached a healing plateau without permanency as of January 3, 1998.
The commission consulted with the administrative law judge, who indicated that she found the applicant to have been a credible witness, but was persuaded by Dr. Zeman's medical opinion. The commission was persuaded by Dr. Stone's medical opinion. While Dr. Stone checked both the direct causation and the occupational disease causation boxes on his Form WC-16-B, it is the commission's experience that physicians frequently check two and sometimes three of these causation boxes, due to their confusion over which legal theory of causation applies. In such cases, the commission looks to the substance of the physician's narrative report(s) to determine his/her medical opinion of causation. Dr. Stone's report dated January 19, 1998, recounts the work incident of October 3, 1997, and makes a preliminary diagnosis of left shoulder rotator cuff tear. His subsequent narrative reports make it clear that he verified the existence of the rotator cuff tear, surgically repaired it, and credibly attributed it directly to the work incident.
In addition, the commission was persuaded by the fact that the applicant had no prior history of left shoulder symptoms/problems, the fact that he reported the incident promptly and continued to experience symptoms dating from the incident, and the inference drawn from Dr. Stone's opinion that a sharp bumping of the applicant's shoulder against the metal support could cause sufficient traumatic movement in the shoulder joint to result in a rotator cuff tear.
The applicant is therefore entitled to additional temporary total disability for the period between June 24, 1998 and April 12, 1999 (both dates inclusive), a period of exactly 42 weeks. The applicant's average weekly wage was $517.20, resulting in a weekly temporary total disability rate of $344.80. The additional temporary total disability award therefore amounts to $14,481.60.
Dr. Stone's assessment of 15 percent permanent partial disability at the left shoulder is also accepted as credible and results in an award of 75 weeks of compensation at the applicable rate of $174.00 per week, for a total of $13,050.00.
A 20 percent attorneys fee will be subtracted from both of these awards.
Reasonably required medical expenses are also due as follows: to Nova Care Outpatient
Rehabilitation the sum of $1,742.00; to Concentra Medical Centers the sum of $414.00; to
St. Francis Hospital of New Berlin the sum of $2,364.25; to
Dr. James W. Stone of Milwaukee the sum of $2,045.17; to the applicant as reimbursement
for drug expense and treatment expense incurred with Kinex Medical Company the total
amount of $382.94; and to Humana reimbursement for medical expense it paid to St. Francis
Anesthesiology of Milwaukee the amount of $975.00.
In his last clinic note dated June 8, 1999, Dr. Stone indicated that the applicant may need to return for treatment on a "prn" basis, and therefore this order will be left interlocutory.
NOW, THEREFORE, this
INTERLOCUTORY ORDER
The Findings and Order of the administrative law judge are reversed. Within 30 days from this date the employer or its insurance carrier shall pay to the applicant additional temporary total disability and permanent partial disability in the total amount of Twenty-two thousand twenty-five dollars and twenty-eight cents ($22,025.28); and to applicant's attorney, Nelida Cortes, fees in the amount of Five thousand five hundred six dollars and thirty-two cents ($5,506.32); to Nova Care Outpatient Rehabilitation the sum of One thousand seven hundred forty-two dollars ($1,742.00); to Concentra Medical Centers the sum of Four hundred fourteen dollars ($414.00); to St. Francis Hospital of New Berlin the sum of Two thousand three hundred sixty-four dollars and twenty-five cents 2,364.25); to Dr. James W. Stone the sum of Two thousand forty-five dollars and seventeen cents ($2,045.17); to Humana the sum of Nine hundred seventy-five dollars ($975.00); and to the applicant as reimbursement for medical expenses which he paid, the sum of Three hundred eighty-two dollars and ninety-four cents ($382.94).
Jurisdiction is reserved for such further findings and orders as may be warranted.
Dated and mailed January 9, 2001.
doranri.wrr : 185 : 1 ND § 3.3 § 3.37
/s/ David B. Falstad, Chairman
/s/ James A. Rutkowski, Commissioner
cc:
ATTORNEY NELIDA CORTES
ESPERANZA UNIDA INC
ATTORNEY RICHARD E CEMAN JR
BASCOM BUDISH & CEMAN SC
PAMELA I. ANDERSON, COMMISSIONER (dissenting):
I am unable to agree with the result reached by the majority herein and I dissent. I agree with the administrative law judge and would accept her decision as my own.
_____________________________________
Pamela I. Anderson, Commissioner
Appealed to circuit court. Set aside and remanded, August 27, 2001. Appealed to Court of Appeals.
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