PATRICK NARCIS, Applicant

TEXTRON INC, Employer
JACOBSEN TEXTRON

TEXTRON INC, Insurer
c/o CONSTITUTION STATE SERVICE COMPANY

In January 2000, the applicant filed an application seeking compensation for a left hand injury caused by occupational disease, with alternative dates of injury on January 28, 1998 and August 13, 1998. (1)   An administrative law judge (ALJ) for the Worker's Compensation Division of the Department of Workforce Development heard the matter on February 21, 2001, with a close of the record on April 6, 2001.

Prior to the hearing, the employer conceded jurisdictional facts and an average weekly wage at the time of the alleged injury of $644.40. The main issue before the ALJ was whether the injuries claimed by the applicant, a left thumb injury and left wrist carpal tunnel syndrome, were injuries arising out of the applicant's employment with the employer while performing services growing out of and incidental to that employment. If such an injury or injuries were established, the issues in dispute would also include nature and extent of disability from the injury or injuries.

On May 25, 2001, the ALJ issued his decision, dismissing without prejudice the applicant's claim for carpal tunnel syndrome, but finding a compensable left thumb injury. The employer and its insurer (collectively, the respondent) filed a timely petition for commission review, seeking reversal of the ALJ's decision finding a compensable left thumb injury.

The commission has considered the petition and the brief filed by the respondent (2),  reviewed the evidence submitted to the ALJ, and consulted the presiding ALJ concerning witness credibility and demeanor. Based on its review, the commission makes the following:

1. Occupational exposure and treatment.

The applicant was born in 1946. He began working for the employer in about 1987. In February 1997, or maybe earlier, he started doing what is described in the record as the "reel twist job." The job involves the discrete tasks of gauging, twisting, cut-off, and inspection. The applicant applies a gauge to a piece of metal bar that is maybe 18 feet long, and puts it in a press machine. The press machine is operated with foot pedals. The machine makes a twist in the metal, and apparently cuts it to length. The applicant apparently holds the metal bar during the twisting and cutting process, then removes the finished blade from the machine, inspects it, and puts it in a tub.

According to the applicant, when the metal bar is cut or fed into the machine during the reel twist operation, it jerks up, causing an impact to the palm and thumb of the his hand. The applicant did over 100-142 repetitions per hour. The applicant testified the pounding from the press machine operation began hurting his hand.

The employer's production supervisor testified about the job beginning about page 72 of the transcript. He did not believe the job involved any blunt force to the left hand. He says a worker loads the material into the die or press, and holds each end with one hand. He does indicate, however, that the applicant held the metal material with his left hand while it was being cut, and could have held it tightly. Transcript, page 72-77.

On or about January 28, 1998, the applicant's thumb, which had been painful, became noticeably worse. On direct examination the applicant testified, as he told his doctors, that he had not had a traumatic injury -- such as fall or twist or something -- but that his pain just came on gradually at work. Transcript, page 50.

At any rate, the applicant reported the pain to the employer, and was sent by the employer to a Dr. Garland. Dr. Garland was the first practitioner the applicant saw for his thumb problem.

Dr. Garland's note for April 20, 1998, is at Exhibit A. He noted the applicant had been working for a year in his then-present job making blades for reels. The doctor reported that the applicant would feed the metal bar into the machine, hold the free end, then experience an impact to his palm when the metal bar jumped with the cut-off process.

The doctor described the problem as pain and swelling at the first MP joint, and occasionally a little pain medially at the PIP joint of the left little finger. He noted that the applicant experienced numbness if his arm was at rest for a long period of time, or while he was asleep, but the numbness was not enough to wake him up. The doctor noted no history of prior thumb injury, and no diagnosis of arthritis.

On examination of the thumb, the doctor noted a markedly deficient or absent ulnar or medial collateral ligament so the left thumb could be bent laterally at the MP joint almost 90 degrees without pain. Hypertrophic changes could be felt, and x-rays did in fact show the hypertrophic changes.

The doctor diagnosed an "unstable left first metacarpophalangeal joint and secondary degenerative joint disease, meaning symptoms from some aggravation at work holding the part." He explained further

"I told him that a final opinion about the cause of the thumb problem would have to come from an orthopedic specialist, but my own opinion is that there must have been a remote and forgotten injury to the ulnar collateral ligament at the left thumb as I do not believe the job as described from one year is responsible for all the changes. He simply makes a fist and grips the part so there is no great strain on the first MP joint. However, I told him the work as described could cause an aggravation to an unstable joint, and that is what has happened."

The applicant evidently chose not to see an orthopedic specialist immediately. Dr. Garland noted on May 6, 1998, that the left thumb was "pretty good." The doctor noted the applicant wore a brace and, on examination, noted no tenderness. His impression was of a previously symptomatic left first MP joint from the gross instability which was improving.

The doctor went on to say he thought the employer should provide the braces, so the applicant could work comfortably without aggravation, but that "I cannot say the underlying condition is work-related."

In July 1998, the applicant had an orthopedic consultation with D. J. Andersen, M.D., on referral from his family doctor, Schulgit. The applicant told Dr. Andersen he had been having thumb problems since January. The applicant denied any specific trauma or acute injury, but the applicant told the doctor he developed the pain gradually, over time, from repetitive use at work. The doctor noted, too, that the applicant's job involved running a machine and rapidly and forcefully grabbing and pulling metal items out, which put stress on his thumb. The applicant told the doctor he had difficulty with grabbing any objects using his left hand, or putting force on the thumb. The applicant told the doctor that the brace he was given by Dr. Schulgit helped, but that he still had a feeling of instability.

On examination, Dr. Andersen noted angulation of the left thumb at the MP joint, with radial deviation of the distal aspect of the thumb. He noted that the applicant had tenderness at the MP joint, and marked laxity at the joint, flexion and extension were intact and that the applicant was unable to pinch anything because pressure on the thumb forced it into radial deviation. There was no resistance from the lateral collateral ligament. X-rays showed no evidence of bony injury, though he had subluxation at the MP joint. The joint, though showing early signs of degenerative arthritis, was intact.

Dr. Andersen's diagnostic impression was chronic ulnar collateral ligament rupture of the left thumb. He recommended a reconstructive surgery.

The applicant underwent surgery in August 1998. Two and a half weeks later, on September 8, 1998, Dr. Andersen noted mild swelling and some tenderness to palpation, with some numbness on the side of the thumb. He provided a spica thumb brace.

In late August 1998, the applicant returned to light duty work, doing inspection, at less than his normal rate of pay. On follow-up, five weeks after surgery, the doctor reported that the applicant's thumb looked good, with a well-healed incision and pin sites intact. The doctor removed the pins, and the doctor gave him some exercises, but instructed him to avoid using his left hand at work.

On recheck in October 1998, the doctor noted the applicant had a bit more motion in his hand, but that his thumb was still quite stiff. He encouraged the applicant to use the thumb brace for work for two more weeks, but to take it off at home.

On his final evaluation, Dr. Andersen stated the applicant had no particular problems with his thumb, that he had good stability on radial stressing and that his thumb remained well aligned. The applicant told the doctor his job put a lot of stress on his left thumb, and that he would like a brace. The doctor referred him to an occupational therapy department to have a brace made, but since the employer was contesting its liability for the claim, it was not clear whether the applicant would go.

Dr. Andersen did allow the applicant to continue with his normal work, as his thumb appeared to be well healed and stable. He told the applicant to continue with his home exercises, and that it could take 6-8 months before his thumb would be healed. He released the applicant to return on an as-needed basis. The applicant returned to full duty on November 20, 1998.

2. Expert medical opinion.

Exhibit A contains a completed and signed practitioner's report on form WKC-16-B from treating surgeon Andersen. He lists a January 1998 "date of traumatic event" in item 3 of the form report. At item 4 of the form report, he refers the reader to his first treatment note for "a description of the accidental event or work exposure" to which the applicant attributed his condition. He referred to his notes for a description of the disability and diagnosis.

Dr. Andersen also marked the "yes" box at item 11 of the form, stating that the "event in item 4 directly caused the disability." The doctor left unmarked the other cause questions (3)  on the form report. Dr. Andersen went on to rate permanent partial disability at five percent for residual pain and stiffness, and gave a "good" prognosis, with no further treatment expected.

Dr. Garland, as noted above, stated in his note from April 20, 1998, that the applicant must have suffered a remote and forgotten injury to the ulnar collateral ligament at the left thumb, because he did not think the work duties as described could have caused the problem over one year's time. Dr. Garland did suggest that work duties over time could have caused an aggravation to an unstable joint. However, Dr. Garland later stated that if the applicant wore a brace he could work without aggravation, and that work did not cause the applicant's underlying condition.

The employer submits expert medical opinion from Rodney W. Malinowski, M.D., who examined the applicant in March 1999, regarding a second opinion concerning the left thumb pain. This would have been after the November 1998 release from Dr. Andersen, following the ulnar collateral repair surgery. Dr. Malinowski noted that, according to the applicant, he was initially told that the ulnar collateral ligament problem treated by Dr. Andersen was a work injury, but then that it was not.

At the time of Dr. Malinowski's evaluation, the applicant complained of numbness and tingling in his left thumb and index fingertip at night, and persistent pain in his left thumb radiating into his arm. He said it was worse than before the surgery. Dr. Malinowski reported that his then-current symptoms seemed unrelated to the collateral ligament injury, though he was suspicious of a proximal compressive neuropathy. He recommended nerve testing. He concluded:

"I explained to Mr. Narcis that I could not clearly ascribe his symptoms to his job injury and really could provide no evidence of causal link between his machine operation and his previous ulnar collateral injury."

The applicant then saw Dr. Malinowski in December 1999 about his carpal tunnel condition. Dr. Malinowski thought decompressive surgery was needed, but declined to give his opinion that work or the ulnar collateral ligament injury caused the carpal tunnel condition.

Finally, Dr. Malinowski submitted a Practitioner's Report form at Exhibit 1, dated in May 2000. Dr. Malinowski states simply "It is our opinion this is not work related." He does not explain if he meant the carpal tunnel claim (which the ALJ did not pay), the thumb claim (which the ALJ did pay), or both. Exhibit 1.

Dr. Andersen then testified at the hearing concerning Dr. Malinowski's opinion. First, however, Dr. Andersen reiterated his diagnosis of instability based on an apparent rupture of the ulnar collateral ligament of the metacarpophalangeal joint, related to work. He then stated he read Dr. Malinowski's opinion to say that the job or the thumb injury did not cause the carpal tunnel syndrome. He did not, however, read Dr. Malinowski's report as providing an opinion on whether the thumb injury was related to the job. Transcript, page 12. Dr. Andersen went on to reiterate his opinion that the work injuries for which he rated the five-percent permanent partial disability on the practitioner's report form were related to his job. Transcript, page 13.

On cross-examination, the respondent's attorney pointed to the portion of Malinowski's report where he wrote he could not clearly ascribe the applicant's symptoms to his job injury, and really could provide no evidence of causal link between his machine operation and his previous ulnar collateral injury. The attorney then asked Dr. Andersen if that did not give an opinion about the causal relation between work and the thumb injury. Dr. Andersen stated he did not think the doctor meant to express that opinion.

On cross-examination, the respondent's attorney also asked Dr. Andersen if he thought the applicant's condition was work-related because he had a traumatic injury, or because of his occupation itself. In other words, the employer's attorney asked the doctor whether he thought that some traumatic event directly caused the problem (as Dr. Andersen indicated on his form WKC-16-B), or whether the disability was caused by an appreciable period of exposure (i.e., causation by occupational disease.)

The doctor's response, essentially, was that he did not know at the time that he first saw the applicant. Transcript, page 20. He testified that the applicant first saw him in July 1998 with complaints going back to January 1998. Given the passage of time, it was impossible for the doctor to determine exactly when the injury occurred.

Dr. Andersen explained that the ulnar collateral injury may occur in two ways. First, it can acutely rupture (such as might happen in a ski injury), a condition called "skier's thumb." Second, it can occur from chronic stress causing laxity or stretching without acute rupture (such as when a gamekeeper wrings a bird's neck), a condition called "gamekeeper's thumb." Transcript, page 19.

The doctor went on to explain that, if he sees a patient shortly after the complaints start, and sees bruising and swelling, he can tell the injury happened acutely. By the time he first saw the applicant, it was so long after the onset of pain that he could not make that determination. Transcript, pages 19-20.

Moreover, he did not think it was important for him to determine causation at the time, as he thought some other doctor had already resolved the issue by stating the problem was work-related. Dr. Andersen therefore concluded that it was an accepted work injury, and did not do the detective work on causation. Transcript, page 21. The doctor also admitted the applicant's problems could have been due to an old injury. Transcript, page 23. He declined to opine that weight lifting could cause the problem, because that activity puts pressure on the palm instead of the thumb. Transcript, page 24.

However, on examination by the ALJ, Dr. Andersen did opine that there had been a rupture -- as opposed to a mere stretching out -- in the distant past, based on a demarcation between normal tissue and scar tissue, occurring as a result of the body's attempt to heal itself after a rupture. Transcript, pages 28-29. In other words, Dr. Andersen testified that the appearance of the applicant's thumb on surgery established that his ligament problem resulted from an acute injury causing a rupture, rather than from exposure over time causing laxity or stretching. Such an injury would be painful, so that the injured person would know when it occurred.

3. Discussion.

After carefully considering Dr. Andersen's testimony, the commission cannot conclude the applicant has established a compensable injury. The commission reads the doctor's testimony to be that the applicant's condition was the result of an acute rupture caused by a traumatic injury. However, the applicant denies any acute event occurring at work, and instead claims disability from repeated occupational exposure.

In other words, Dr. Andersen's testimony raises the real possibility that the applicant's problem is solely the result of an injury occurring in the distant past, a point Dr. Andersen acknowledged in his testimony at page 23. Indeed, Dr. Garland's suspicions of "remote and forgotten injury" seem to be borne out by Dr. Andersen's surgical findings.

The commission realizes that the applicant may have had an acute injury in the past, and then experienced a worsening of his condition as a result of repeated work exposure over time in his employment. However, that is not the opinion Dr. Andersen gave on his practitioner's report form, or in his testimony. While Dr. Andersen testified he initially could not be sure whether a rupture caused the ligament injury from an acute trauma, or stretching or laxity from work exposure over time, he went on to testify that his surgical findings established a rupture.

The commission also considered Dr. Garland's opinion that work activity over time aggravated the applicant's condition following the "remote and forgotten injury" to the ulnar collateral ligament to the left thumb. In a subsequent note, however, Dr. Garland indicated that the aggravating effect of work could be avoided by wearing a brace. Under the facts of this case, that opinion is not sufficient to support the conclusion either that work was a "material contributory causative factor" in the progression of the applicant's condition following a remote traumatic injury in the sense used in the occupational disease test as it usually formulated, (4)  or that work activity "precipitated, aggravated and accelerated the underlying condition beyond its normal progression." (5)   At best, Dr. Garland's opinion establishes the "in the nature of an aggravation" type of causal connection rejected as insufficient by the supreme court. (6)

In short, this case goes beyond the so-called "wrong box" defense that the courts and commission routinely reject when a medical expert's narrative report establishes causation but he or she simply marks the wrong legal causation box on the practitioner's report form. See for example, Gary LaBonte v. Maysteel Corp. Meno Falls, WC Claim No. 1999-006958 (LIRC, February 10, 2000). Rather, Dr. Andersen's testimony that the applicant's condition was caused by a traumatic event and that the traumatic event would have been something a person would likely remember, coupled with the applicant's denial of a traumatic injury or event at work, causes the commission to doubt whether the applicant in fact sustained a work injury. The commission, therefore, adopts the report of Dr. Malinowski concerning causation, and concludes that the applicant has not established disability to his left thumb from an accident or disease arising out of his employment with the employer, sustained while the applicant was performing services growing out of or incidental to that employment. The application for compensation as it relates to the applicant's left thumb injury must therefore be dismissed.

The ALJ found the applicant's claim for a left wrist carpal tunnel injury to be premature, and dismissed without prejudice the application as it relates to that injury. Neither party has disputed this aspect of the ALJ's decision, and the commission, like the ALJ, concludes that claim is premature and should be dismissed without prejudice.

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

The findings and order of the administrative law judge are reversed. The application as it relates to the applicant's left thumb injury is dismissed. The application as it relates the applicant's claim for left wrist carpal tunnel syndrome is dismissed without prejudice.

Dated and mailed February 28, 2002
narcisp . wrr : 101 : 8  ND � 3.42

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

/s/ Laurie R. McCallum, Commissioner

The commission conferred with the presiding ALJ concerning witness credibility and demeanor. Transamerica Ins. Co. v. ILHR Department, 54 Wis. 2d 272, 283-84 (1972). He found the applicant's description of his job duties more credible than production manager Clapper's, mainly because the applicant actually did the job. The ALJ also told the commission he found Dr. Andersen quite credible, that the doctor's testimony was straightforward and understandable.

The commission accepts the ALJ's credibility impressions. Indeed, the commission does not reverse because it discredited Dr. Andersen's testimony, but rather because it found the doctor's testimony persuasive. That is, Dr. Andersen's testimony persuaded the commission the surgical findings established that the applicant's thumb problem was the result of a traumatic rupture, rather than laxity from long-term exposure. Because the applicant has not established that the traumatic rupture was caused by an event occurring at work, the commission could not conclude the applicant's thumb condition was the result of a compensable injury.

cc: 
Attorney Dinah M. Crayton
Attorney Robert P. Ochowicz

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(1)( Back ) On January 28, 1998, the applicant, having noted a worsening of pain in his thumb, first sought medical treatment. The applicant's last day of work before his eventual surgery was August 13, 1998. These dates, of course, track the definition of date of injury in cases of occupational disease under Wis. Stat. � 102.01(2)(g).

(2)( Back ) The applicant has not submitted a brief.

(3)( Back ) Item 12 on the practitioner's report form refers to causation by precipitation, aggravation and acceleration of a pre-existing condition beyond normal progression. Item 13 refers to causation by an appreciable period of workplace exposure that was at least a material contributory causative factor in the onset or progression of the applicant's condition.

(4)( Back ) A worker need not show that the work exposure was the only, or even the main, cause of his disability, but only that the work exposure was a "material causative factor." Universal Foundry Co. v. ILHR Department, 82 Wis. 2d 479, 487-88, note 5 (Ct. App. 1978).

(5)( Back ) Lewellyn v. DILHR Department, 38 Wis. 2d 43, 59, 155 N.W.2d 678 (1968). This causal test as stated on the WKC-16-B Practitioner's Report form refers to a traumatic event, as opposed to work activity, which precipitates, aggravates, and accelerates a pre-existing condition beyond normal progression. The test as stated in the form, then, is customarily applied to accidental events which affect pre-existing conditions, though the test as stated in Lewellyn itself refers to "work activity" and has been applied in cases of occupational disease. Shelby Mut. Ins. Co. v. DILHR, 109 Wis. 2d 655, 662-63 (Ct. App. 1982).

(6)( Back ) Jos. Schlitz Brewing Co. v. DILHR, 67 Wis. 2d 185, 191-92 (1975).

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