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

JEREMIAH JENSEN, Applicant

MARTIN HAROLD ROOFING, Employer

WIS WC UEF, Insurer

WORKER'S COMPENSATION DECISION
Claim No. 1997-005804


In January 1999, the applicant filed an application for hearing seeking compensation for permanent partial disability to his left hand. Prior to the hearing in this matter, the Wisconsin Worker's Compensation Uninsured Employer's Fund (UEF) conceded jurisdictional facts, an average weekly wage of $260, and permanent partial disability to the applicant's left hand at 30 percent compared to amputation at the wrist in the amount of $20,280. In dispute is the amount, if any, of permanent partial disability beyond the amount conceded.

A hearing was held on this issue before administrative law judge (ALJ) Thomas Landowski for the Worker's Compensation Division of the Department of Workforce Development on September 12, 2000. At the conclusion of the hearing, ALJ Landowski entered a bench decision followed by a written order dated October 17, 2000. UEF filed a timely petition for review.

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 makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The applicant, a carpenter or construction worker, was injured while working for the employer. He severely lacerated his wrist on August 6, 1996, while carrying siding. On the night of the injury, Eugene Schmitt, M.D., performed surgery which included: a repair of the median nerve and the radial artery; a repair of the palmaris longus, flexor carpi ulnaris, the flexor carpi radialis, the flexor pollicis longus, and the flexor digitorum profundus to the index and long fingers; a repair of the flexor digitorum superficialis to the index, long, ring and small fingers; and a partial transection of the ulnar artery.

Following surgery, the applicant underwent traditional physical therapy and redeveloped a reasonable range of motion. Two doctors have assessed his residual or permanent disability as a result of the accident.

Treating doctor Schmitt opines:

"He overall is doing satisfactorily considering the severe extent of his injury. He does have literal mass motion of his hand as far as moving digits two through five together rather than individually. He has scar tissue in the volar (1) aspect of the wrist. All in all he does have moderately good flexion and extension considering the injury although he does not have individual flexion and extension very well. He also has limitation of his thumb motion as far as full flexion. He also has marked decreased sensation in the median nerve distribution. He can feel when I touch in median nerve distribution but it is more of a protective type sensation rather than any significant two point discrimination. The patient does have weakness in the wrist. He also has cold intolerance. He also has discomfort in the wrist in general. I feel he has 30% permanent/partial disability as compared to amputation of the left wrist. He is much better off with it than without it, but it certainly is less than ideal."

Dr. Schmitt concluded with a discussion of a proposed tenolysis surgical procedure, which he did not recommend because of the risk it would actually leave the applicant worse off.

The independent medical examiner retained by UEF, Larry C. Livengood, M.D., noted the applicant's reported difficulty performing fine detailed activities secondary to the loss of sensation and loss of dexterity and grip strength; his complaints of decreased sensation in the classic median nerve distribution; and his complaint of a fair amount of stiffness in the distal interphalangeal joints of his finger.

On physical examination, Dr. Livengood noted the applicant's lacerations and surgical incisions had healed and were nontender. He noted, too:

Describing his observation of complete loss of sensation in the median nerve distribution, Dr. Livengood wrote:

"[The applicant] has no recognizable two point discrimination. This is noted in the thumb, index, middle and radial half of the ring finger. The ulnar innervated structures, the ulnar half of the ring finger, and the complete small finger have normal sensation. Fortunately I do not appreciate a significant amount of thenar (2) muscle weakness or visible atrophy. I suspect there may be some return from his median nerve repair or there is some cross over innervation of the thenar muscles via the ulnar motor branch."

Exhibit B, page 2. Dr. Livengood stated his impression as:

"Status post severe left wrist laceration with multiple flexor tendon injuries, median nerve laceration, and radial artery and ulnar artery laceration repairs. He is now left with a significant disability based primarily on sensory loss, loss of range of motion, and residual grip strength weakness. In addition he has some complaints of cold intolerance which I believe are of a minor nature.

This gentleman had an initial disability assignment of 30 percent compared to amputation at the wrist made by Dr. Schmitt. I believe that is a low disability assignment. When I calculated his disability, the number I obtained was 45 percent compared to amputation. This of course, is higher than 30 percent, and that is based primarily on sensory loss. Complete sensation loss on the palmar surface of the hand involving both the median and the ulnar nerves constitutes 50 percent disability to the hand. Fortunately, this gentlemen did not have ulnar nerve involvement, and he did have some return of thenar muscle function, but he has also has complete lack of motion and stiffness to his fingers which also raises the disability for his injury. Therefore, I believe 45 percent disability is a more accurate assessment of his current state."

Exhibit 2, pages 2 and 3.

The applicant testified about his current condition at the hearing. He testified he cannot move some of his fingers of his left hand, that he cannot close his left hand or feel with his hand, that he has delayed sensation with his left hand, and that when he does sense heat or cold the sensation is twice as strong as normal. He is able to grasp a nail with his left hand, and hold it in place to nail, but he has to pick nails out of a nail bag with his right hand now, instead of his left hand as formerly, and then put the nails in his left hand.

The commission reads the reports of Drs. Schmitt and Livengood to establish loss of sensation in the median distribution of the applicant's left hand (i.e., the part of the hand innervated by the median nerve). The ulnar distribution (the ulnar part of the ring finger and all of the little finger) is unaffected. Dr. Livengood describes a total or complete loss of sensation in the median nerve distribution, though he acknowledged that the lack of thenar muscle weakness or atrophy might show some return from the median nerve repair or crossover innervation from the ulnar motor branch. Dr. Schmitt describes the decreased sensation in the median distribution of the applicant's left hand as "marked."

According to the administrative code, total median sensory loss to the hand is rated at 65 to 75 percent compared to amputation of the hand at the wrist. Total ulnar sensory loss to the hand, by contrast, is rated at 25 percent. Wis. Admin. Code § DWD 80.32(10).

As UEF argues, IME Livengood erroneously assumes the code-minimum rating for "complete sensation loss on the palmar surface of the hand involving both the median and ulnar nerves" is 50 percent compared to amputation at the wrist. (3)   In fact, the administrative code provides for no such rating. However, Wis. Admin. Code § DWD 80.32(10) does provide for a minimum permanent partial disability rating of 65 to 75 percent compared to amputation at the wrist for "total median sensory loss to hand."

In this case, while Drs. Schmitt and Livengood agree that the applicant has a sensory loss in the median distribution of the applicant's left hand, they do not appear to agree on its extent. However, regardless of whether the applicant's median sensory loss in the left hand is "marked" or "total," the doctors do agree that the applicant's sensory loss causes him to have no two-point discrimination. The applicant also has other disabling factors including some loss of motion and loss of grip strength. In light of these other disabling factors, and even assuming the applicant's median sensory loss in the left hand is only "marked" as opposed to "complete," permanent partial disability at 45 percent compared to amputation at the hand is reasonable and supported by the administrative code.

The applicant is therefore entitled to 180 weeks of permanent partial disability (0.45 times 400 weeks), payable at the weekly rate of $169 (the statutory maximum for injuries sustained in 1996), totaling $30,240. Of this amount, UEF previously paid $20,280, leaving the additional amount of $10,140 awarded under this order.

The applicant approved the protection of an attorney fee, fixed under Wis. Stat. § 102.26 at 20 percent of the additional amount awarded under this order, or $2,028. That amount shall be paid to the applicant's attorney within 30 days, and the remainder, $8,112, shall be paid to the applicant within 30 days. UEF is responsible for the payment of these amounts; however, judgment is also granted against the employer in default, based on its failure to appear at the hearing.

Because the applicant has significant permanent disability, and because Dr. Schmitt's notes suggest the possibility of future surgery, jurisdiction is reserved to permit the resolution of claims for additional medical expense, temporary disability, and permanent disability arising or incurred in the future.

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

INTERLOCUTORY ORDER

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

Within 30 days from the date of this order, the employer and the Wisconsin Worker's Compensation Uninsured Employers Fund shall pay all of the following:

1. To the applicant, Jeremiah Jensen, Eight thousand one hundred twelve dollars and no cents ($8,112.00 ) in disability compensation.

2. To the applicant's attorney, Tony Welhouse, Two thousand twenty-eight dollars and no cents ($2,028.00) in attorney fees.

Jurisdiction is reserved for such future orders as are warranted, consistent with this decision.

Dated and mailed June 22, 2001
jensenj . wrr : 101 : 8  ND § 5.18

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner


cc: 
Attorney Tony Welhouse
Attorney Jeffrey J. Strande
Attorney Maryeve Heath
Attorney Douglas Drexler


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Footnotes:

(1)( Back ) "Volar" means pertaining to the palm of the hand or the sole of the foot. Dorland's Illustrated Medical Dictionary (29th ed., 2000).

(2)( Back ) "Thenar," in the sense used by Dr. Livengood, refers to the mound in the palm at the base of the thumb. Dorland's Illustrated Medical Dictionary (29th ed., 2000).

(3)( Back ) Dr. Livengood's reference to a 50 percent rating for "complete sensation loss on the palmar surface of the hand involving both the median and ulnar nerves" evidently is a misreading of the 50 percent rating for complete sensory loss for "any digit." See Wis. Admin. Code § DWD 80.32 (10).

 


uploaded 2001/07/16