MICHAEL S MURAWSKI, Applicant

CONTRACT TRANSPORT SERVICES, Employer

FREMONT INDEMNITY CO, Insurer

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.

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

Dated and mailed November 26, 2003
murawmi . wsd : 175 : 8   ND  § 5.18  § 5.21 

/s/ David B. Falstad, Chairman

/s/ James T. Flynn, Commissioner

Robert Glaser, Commissioner

The applicant asserts in his petition for commission review the administrative law judge erred in determining the applicant suffered a scheduled injury to his right upper extremity as a result of the work incident on August 11, 2000, but he did not suffer an unscheduled injury and was not entitled to permanent total disability as a result of the work incident. The applicant contends he believes that his reflex sympathetic syndrome resulting from the work incident is not a scheduled injury, and because of his disability of his reflex sympathetic dystrophy he has suffered permanent disability which warrants consideration under the statutes for loss of earning capacity benefits.

However, there is no evidence the applicant suffered any unscheduled disability in this case. In order to establish a claim for permanent total disability, as the applicant asserted at the hearing, the applicant must establish that at least an ascertainable portion of the total disability is attributable to an unscheduled injury. As the court of appeals noted in Langhus v. LIRC, 206 Wis. 2d 494 (Ct. App. 1996) a worker could prove permanent total disability stemming from both scheduled and unscheduled injuries under the authority in Wis. Stat. § 102.44(2) to find the facts. The court of appeals stated in Langhus that even if a worker is totally permanently disabled for employment purposes having lost 100% of his or her earning capacity, if the loss is due to a scheduled injury, he or she may only receive the scheduled benefits.

The applicant cites the recent commission decision in Tomasovich v. County Transit Corp., W.C. Claim No. 1995055411 (LIRC June 6, 2003). In the Tomasovich decision, the commission found the applicant permanently totally disabled even though the treating physicians rated disability only at the arm for a scheduled disability, and the medical records clearly documented pain in the arms and shoulder. However, the commission noted the applicant testified credibly that he has pain radiating from his arm to his upper back, and his physician's opinion provided a credible basis for determining that a substantial portion of the applicant's permanent total disability was due to disabling pain extending to an unscheduled part of his body.

In the current case, there is no evidence to establish that the applicant has suffered an unscheduled injury. The applicant contends in his petition and his brief that he suffered some pain extending into his shoulders and neck. However, the applicant specifically testified at the hearing that he has no disability in his back or neck, as a result of the work incident. In addition, the applicant's treatments with Dr. Vasudevan specifically relate to ongoing right elbow pain, including complex pain syndrome, and the record does not mention any disability or ongoing symptoms outside of his right upper extremity. The applicant reported depression and anxiety related to his ongoing pain syndrome, but Dr. Vasudevan did not rate any disability for any psychological problems, and he also noted that the applicant had considerable external stresses in his life related to his wife's heart attacks and ongoing physical problems.

The only permanent disability rated by Dr. Vasudevan was for the applicant's arm. Although Dr. Toivonen acknowledged the applicant's prior diagnosis of reflex sympathetic dystrophy, he noted the applicant did not have any current symptoms, and no findings of any pain syndrome outside of his right upper extremity. The evidence does not establish that there was any ascertainable portion of the applicant's disability which was attributable to an unscheduled injury. All of the applicant's ongoing pain and need for prescription medications appear to be related to his right upper extremity as part of a scheduled injury. Therefore, the applicant has not met the requirements to establish a claim for permanent total disability. To whatever extent the applicant continues to suffer from reflex sympathetic dystrophy, it does not appear from the medical records that the applicant's condition has caused any disability outside of his right upper extremity.

The employer contends in its cross appeal that the administrative law judge's order should be set aside for ordering a prospective prescription expense. The administrative law judge appropriately noted that there was no basis that he could determine for the insurer not paying, given the applicant's ongoing need for Neurotin, Paxil, Trazodone and Lidoderm as provided in Dr. Vasudevan's note of April 17, 2003. The administrative law judge appropriately noted that Dr. Toivonen did not give a hint of any defense in his July 29, 2002 report, and the administrative law judge appropriately ordered that the insurer shall prospectively pay for the prescribed medications consistent with the reevaluation opinion of Dr. Vasudevan of April 17, 2003.

cc: 
Attorney Scott E. Wade
Mark Femal

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