ROY WADE JONES, Applicant

AMERICAN ROLLER CO, Employer

CONNECTICUT ACCIDENT AND INDEMNITY CO, Insurer
c/o ROYAL INDEMNITY CO

HARTFORD ACCIDENT AND IINDEMNITY CO

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, except that it makes the following modifications:

1. In the last sentence of the last paragraph of the ALJ's Findings of Fact and Conclusions of Law, delete ", such as loss of earning capacity".

2. In the third paragraph of the ALJ's Interlocutory Order, substitute "$43,417.70" for $38,898.20".

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

Dated and mailed February 28, 2003
jonesro . wmd : 101 : 9  ND § 3.3

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

The applicant was born in 1965 and began working for the employer in 1984 as a mill operator, which he describes as a physical job. He seeks compensation for a wrist injury occurring for which he has undergone multiple surgeries.

The ALJ credited the opinions of the treating doctors, Andersen and Daley, and found a compensable injury occurring on March 24, 1997 resulting in temporary disability and permanent partial disability at 35 percent compared to amputation of the hand at the wrist. Hartford Accident and Indemnity Co. (Hartford Accident) was on the risk on March 24, 1997. Accordingly, the ALJ ordered Hartford Accident to reimburse payments made by Connecticut Indemnity Co. (hereafter Connecticut Indemnity/EBI), who came on the risk only as of April 1, 1997.

Hartford Accident appeals, contending that the ALJ did not specifically state whether he found a date of injury from an acute injury on March 24, 1997 or a date of disability from occupational disease; that there is no evidence that the applicant suffered an acute injury on March 24, 1997; that if anything the applicant's injury is occupational in nature; that if the injury is occupational, the date of disability setting the date of injury would be the first day of lost work time for treatment, or April 25, 1997, when Connecticut Indemnity/EBI was on the risk. In making this argument, Hartford Accident emphasizes particularly the medical notes indicating a gradual onset with heavy activity, most notably Dr. Laing's treatment note of May 5, 1997 (documenting the applicant's complaints of long-standing symptoms, which he attributed to repetitive lifting and cutting at work, without one specific injury.)

The commission affirms the ALJ's finding of a March 24, 1997 date of injury. The record establishes that the applicant had had prior wrist problems. The record also establishes that his wrist problems got suddenly worse at work on March 24, 1997 when the applicant was pulling polymers out of a box. Given the diagnoses of scapholunate ligament rupture or tear and triangular fibrocartilage tear, the commission is satisfied that the applicant suffered a traumatic injury at that point, a tearing, a "letting go." See Lewellyn v. ILHR Department, 38 Wis. 2d 43, 59-60 (1968). In other words, the applicant's injury occurs with an actual traumatic event rather than simply the occurrence of incapacity from, or ripening of, the occupational disease. Kohler Company v. ILHR Dept., 42 Wis. 2d 396, 400- 01, 167 N.W.2d 431 (1969). See also: Virginia Surety v. LIRC, 2002 WI App 277, ¶15,  ___ Wis. 2d ___, 654 N.W.2d 306.

According to the very first treatment note, when the applicant saw physician's assistant Fleiss on April 25, 1997, the applicant reported a one-month history of right wrist pain beginning at work when the applicant felt his right wrist give out somewhat. Similarly, Dr. Andersen's June 13, 1997 note refers to an event occurring while working with the polymer strips in March 1997, and the doctor stated then that by history the applicant mostly likely had a subacute problem secondary to an injury in March 1997. Likewise, Dr. Daley's October 14, 1997 note -- which reports that the applicant sustained a right scapholunate disassociation after he felt a "pop while lifting items at work" -- suggests a traumatic injury.

Indeed, the reports of the medical experts in this case opine generally that an event or accident caused the applicant's injury. The practitioner's report signed by Dr. Daley states that a traumatic event occurring on March 24, 1997 directly caused the applicant's injury. See exhibit D. True, Dr. Andersen, who referred the applicant to Dr. Daley, indicated causation by both direct injury and occupational disease in his May 1998 practitioner's report in exhibit 3. Nonetheless, the examiner retained by Hartford Accident, Kevin Weidman, M.D., rules out causation by repetitive minor trauma, and says an accident or traumatic injury involving significant force was necessary. Exhibit 1, report of Weidman dated September 11, 2001, page 2. While the commission rejects Dr. Weidman suggestion that the force the applicant employed in doing his job on March 24, 1997 did not result in such an accident, his opinion contradicts the occupational disease theory Hartford Accident advances on appeal. Finally, the applicant testified, credibly to the ALJ, to a dramatic increase in pain occurring after a specific event on March 24, 1997.

Hartford Accident also objects to the ALJ's reservation of jurisdiction insofar as it mentions the possibility of a loss of earning capacity claim. As Hartford Accident points out, if a worker's injury causes disability to a "scheduled part" but not an "unscheduled part," no award for loss of earning capacity may be made beyond that inherent in the schedule at Wis. Stat. § 102.52. See: Mednicoff v. DILHR, 54 Wis. 2d 7, 12-16 (1972). The commission has amended the ALJ's order to delete the specific reference to loss of earning capacity, as there is no evidence of disability to an unscheduled part of the body at this time.

Finally, Connecticut Indemnity/EBI and Hartford Accident agree on appeal that the proper amount that Hartford Accident should reimburse Connecticut Indemnity/EBI for medical expense -- should Hartford Accident be found liable -- is $43,701.70 (which is the $43,501.10 claimed by Connecticut Indemnity, minus $83.40 disputed by Hartford Accident.) The applicant does not appear to take a position on this point. The commission has amended the ALJ's order as the insurers request.

cc: 
Attorney Scott W. French
Attorney Charles M. Soule
Attorney Gary S. Stanislawski

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