JEANETTE BUDEWITZ, Applicant

MENASHA CORP WATERTOWN, Employer

LUMBERMENS MUTUAL CAS CO, Insurer

The employer and its insurance carrier (respondents) submitted a petition for commission review alleging error in the administrative law judge's Findings and Interlocutory Order issued in this matter on July 28, 2000. The applicant submitted an answer to the petition and briefs were submitted by the parties. At issue are whether the applicant sustained occupational bilateral shoulder injuries arising out of and in the course of her employment with the employer, and if so, nature and extent of disability and liability for medical expense.

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 witnesses, hereby affirms in part and reverses in part his Findings and Interlocutory Order. The commission makes the following:

The applicant, whose birth date is April 6, 1963, began her employment with the employer on June 6, 1994. She was a molder/finisher, which involved repetitive sanding, painting, pushing, and lifting of parts weighing up to 30 pounds each. She also used a drill and riveter. Gradually, she experienced increasing pain in her hands and arms, then up into her shoulder. The pain was worse on the right than on the left. She took a lot of pain pills and told her foreman, union steward, and others about the problem. She was seen by a physician over a two-year period but was not taken off work or given restrictions. She was laid off in June of 1997, after another company bought the business.

The applicant was treated by several physicians, and on August 4, 1997, Dr. Holly J. Duck performed a right shoulder subacromial decompression with debridement. A rotator cuff tear (tendon damage) had been suspected prior to the surgery, but only labral fraying was found.

The applicant was referred to Dr. Robert Zoeller. On February 7, 1999, he assessed 30 percent permanent partial disability at the right shoulder and 20 percent at the left shoulder, based on the ranges of flexion and abduction which he measured. He also assessed restrictions of no lifting greater than 10 pounds and no significant pushing or pulling.

At the insurance carrier's request, Dr. Mark Aschliman examined and evaluated the applicant. In his report dated November 5, 1999, Dr. Aschliman diagnosed chronic pain without physiologic findings and no work injury. He did concede that the applicant may have had "some bilateral rotator cuff symptoms or shoulder strain," but no permanent disability or "significant" injury. He found her responses to the physical examination to be exaggerated, nonphysiologic, and consistent with symptom magnification. He indicated he would assess 5 percent permanent partial disability at the right shoulder based on the surgery, but would not call it work related.

A tiebreaker exam was agreed to in the person of Dr. James W. Leonard, a rehabilitation medicine specialist. His examination and evaluation were done on February 25, 2000. Dr. Leonard diagnosed a "myofascial pain-type problem" with a date of injury on the last day of work (June 6, 1997). He also found some pain behaviors in the course of his examination. He agreed with Dr. Zoeller that a healing plateau had been reached as of February 7, 1999, and also agreed with the 10-pound lifting restriction. He recommended only general conditioning for future treatment, noting that the applicant had not kept physical therapy appointments in the past.

As noted by the administrative law judge, the applicant's job duties were strenuous and required repetitive use of her arms and hands. Her credible testimony and medical records indicate that while working for the employer, she experienced a gradual onset and worsening of bilateral shoulder problems. A medical history taken during treatment at the Watertown Memorial Hospital Emergency Room on December 2, 1994, indicated right elbow pain had started while the applicant was working for a previous employer, a nursing home. But the applicant credibly denied relating such a history, and there is no medical record of treatment for such alleged preexisting problem. On April 15, 1997, a Dr. Bailey took a history in which he indicated that the applicant has had pain "for about seven years" in both arms. This notation is not found to be accurate given the applicant's credible testimony to the contrary, and the absence of medical documentation for arm or shoulder treatment predating the applicant's employment with the employer.

Accordingly, the medical opinions of Dr. Zoeller and Dr. Leonard to the effect that the applicant sustained occupational bilateral shoulder injuries, with the date of these injuries being June 6, 1997, are accepted as credible. As a result of her right shoulder surgery, the applicant is entitled to temporary total disability for the period between August 3, 1997 and December 3, 1977 (both dates exclusive), a period of 17 weeks and 2 days. The applicable weekly rate for temporary total disability is $ 400.00, resulting in a total award of $ 6,933.33.

Dr. Zoeller's assessments of 30 percent permanent partial disability at the right should and 20 percent at the left shoulder are not accepted as credible for two primary reasons. First, both Dr. Leonard and Dr. Aschliman found exaggerated pain behaviors in their examinations of the applicant. Second, a review of the various medical opinions, including those of Drs. Zoeller, Leonard, Peterson and Duck, reveals significant variations in the range of motion readings taken for flexion and abduction in the applicant's shoulders. These measurements varied in amount from 15 degrees to 30 degrees. Dr. Aschliman assessed 5 percent permanent partial disability at the right shoulder and no permanent disability at the left shoulder. Dr. Leonard did not give any permanent disability ratings, although he adopted physical restrictions which are essentially the same as those given by Dr. Zoeller. Considering the medical opinions and the other aforementioned factors, the commission finds that the applicant sustained 15 percent permanent partial disability at her right shoulder and 5 percent permanent partial disability at her left shoulder, attributable to the occupational work injuries. This amounts to 105 weeks of compensation at the applicable rate of $ 174.00 per week, for a total of $ 18,270.00. All of this award is currently accrued.

Applicant's attorney is entitled to a 20 percent fee against the disability awards made herein, as well as $ 338.37 in costs.

Respondents are also liable for reasonably required medical expenses as detailed in Applicant's Exhibit C, and as enumerated in the Interlocutory Order set forth below. This includes $ 1,725.70 in reimbursement to Dean Health Plan for medical expenses which it paid. Respondents asserted that they are not liable for any medical expenses because the applicant's liability for them was discharged in his personal bankruptcy proceeding. It was the applicant's personal liability for these bills which was discharged in his individual bankruptcy proceeding, not the respondents' statutory liability under Wis. Stat. § 102.42(1). See Weigel v. Sentry Indemnity Company, 94 Wis. 2d 172, 180-81, 287 N.W.2d 796 (1980); Burling v. Schroeder Hotel Company, 238 Wis. 17, 30-31, 298 N.W. 207 (1941).

Dr. Zoeller credibly opined that additional medical treatment may be required to cure and relieve the applicant from the effects of her work injury. Respondents note that the applicant previously stopped attending physical therapy sessions in September of 1997, but the applicant credibly testified that this was due to the fact that she was unemployed and respondents refused payment for such treatment.

NOW, THEREFORE, this

Within 30 days from this date, respondents shall pay to the applicant the sum of Nineteen thousand eight hundred twenty-four dollars and twenty-nine cents ($ 19,824.29); to applicant's attorney, Russell Devitt, fees in the amount of Five thousand forty dollars and sixty seven cents ($ 5040.67), and costs in the amount of Three hundred thirty-eight dollars and thirty-seven cents ($ 338.37); to Turville Bay the sum of Six hundred thirty dollars ($ 630.00); to Madison Radiologists the sum of Two hundred twenty-one dollars ($ 221.00); to Watertown Memorial Hospital the sum of Two hundred fifty-nine dollars and ninety cents ($ 259.90); to Fort Atkinson Memorial Health Services the sum of Six thousand six hundred thirty- eight dollars and twenty-two cents ($ 6,638.22); and to Dean Health Plan reimbursement in the amount of One thousand seven hundred twenty-five dollars and seventy cents ($ 1,725.70).

Jurisdiction is reserved for such further findings and orders as may be warranted.

Dated and mailed January 9, 2001
budewje . wrr : 185 : 1   ND § 5.46

/s/ David B. Falstad, Chairman

/s/ James T. Flynn, Commissioner

/s/ Robert Glaser, Commissioner

The commission consulted with the administrative law judge, who indicated that he found the applicant to have been a credible witness. However, after reviewing the medical opinions documenting the applicant's exaggerated pain behavior, and the variances in the range of motion measurements, the commission concluded that Dr. Zoeller's permanent partial disability ratings were not credible. The commission's reductions of the permanent partial disability awards reflected its analysis of the medical evidence.

cc: 
Attorney Russell W Devitt
Soffa & Devitt

Attorney David L Styer
Kasdorf Lewis & Swietlik SC

[ Search Decisions ] - [ WC Legal Resources ] - [ LIRC Home Page ]

uploaded 2004/02/25