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

PATRICIA A GRADY, Applicant

GENERAL MOTORS CORP, Employer

GENERAL MOTORS CORP, Insurer

WORKER'S COMPENSATION DECISION
Claim Nos. 1995-060638, 2003-009471

The self-insurer employer submitted a petition for commission review alleging error in the administrative law judge's Findings and Interlocutory Order issued in this matter on March 11, 2003. The applicant submitted an answer to the petition and briefs were submitted by the parties. The employer has conceded an occupational left elbow injury, but disputes the date of injury as found by the administrative law judge. The parties agree that the administrative law judge erred by ordering an attorney's fee against payments the applicant received from nonindustrial sickness and accident coverage.

The commission has carefully reviewed the entire record in this matter and hereby affirms in part and reverses in part the administrative law judge's Findings and Interlocutory Order. The commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW


The applicant, whose birth date is March 6, 1958, has worked for approximately 26 years as an assembler for the employer. Her duties involved significant, repetitive stress to her left elbow, in which she developed cubital tunnel syndrome. At this point in the proceeding there is no dispute that the condition is work-related. There is also agreement by both sides that the administrative law judge erred in the method he used to calculate the attorney fee (he incorrectly assessed a 20 percent fee against $7,486.25 in sickness and accident benefits which had been conceded for the period of temporary disability). The only current disagreement is over the correct date of injury.

Medical records demonstrate that the applicant began seeing physicians at least as early as 1997 for left elbow and hand symptoms. However, there is no indication that she missed any work for this problem until October of 2001, when she was referred for an EMG by the company doctor, Dr. Chen. The applicant sought treatment from Dr. Chen due to her left arm and left finger symptoms. The EMG was read as showing left ulnar nerve neuropathy at the elbow without axonal loss. Dr. Chen referred the applicant to Dr. Bradley Fideler on November 20, 2001, and Dr. Fideler began conservative treatment, but indicated that if this was not successful the applicant would need ulnar nerve transposition surgery. On November 26, 2001, Dr. Fideler assessed restrictions of no lifting greater than five pounds and no repetitive grasping, pushing, pulling, etc. with her left hand. Dr. Fideler performed an ulnar nerve transposition on the applicant's left elbow on January 9, 2002. He assessed 3% permanent partial disability at that elbow.

The applicant missed work to have the October 2001 EMG, and also to see Dr. Fideler on November 20, 2001. The employer reimbursed her full pay on each of these occasions because it was its policy to do so for work missed under such circumstances. The administrative law judge dismissed these as dates of injury by finding that prior to January 8, 2002, the applicant's symptoms were not incapacitating. In Virginia Surety Co., Inc. v. LIRC, 2000 WI App 277, 18, 258 Wis. 2d 665, 680-81, 654 NW2d 306, the court stated:

"We agree that the Commission's distinction between non-incapacitating symptoms on the one hand and incapacity to work on the other is a reasonable interpretation and comports with the intent of the statute. Indeed, Montello Granite Co., upon which General Cas. Co. relied, noted that the supreme court had "consistently held" that under the worker's compensation act as it then existed, " 'in cases of occupational disease, in order to entitle an employee to compensation, he must have sustained such physical incapacity from disease as renders him incapable of performing his services to the extent that a wage loss results.' " (emphasis in original).

In Virginia Surety the court affirmed the commission's finding that several dates of employer-required medical examinations for a developing silicosis condition, which resulted in lost work time, did not constitute dates of disability. This was because the applicant's missed work time had not been due to incapacitating symptoms or restrictions on his ability to work. No incapacity to work was shown until the applicant subsequently stopped working due to symptoms of silicosis.

In the case at hand, the applicant's symptoms prompted her to miss work to seek treatment from Dr. Chen, and subsequently from Dr. Fideler. Even though the employer reimbursed her in full for this missed work time, it was work missed due to incapacitating symptoms of ulnar neuropathy. Dr. Fideler assessed physical restrictions on November 26, 2001, which is further evidence that the applicant's work-related condition had become "incapacitating." Since the exact date of missed work in October 2001 is not revealed in the record, and since the applicable disability rates are the same for an October or a November 2001 injury, the date of occupational injury is found to have been November 20, 2001.

As a result of the occupational injury of November 20, 2001, the applicant was entitled to temporary total disability benefits from January 9, 2002 to April 15, 2002, a period of 13 weeks and 4 days, at the applicable rate of $582.00 per week for a total of $7,954.00. The applicant received $7,486.25 in sickness and accident benefits for this period, leaving the net amount of $467.75 in temporary total disability due. A 20 percent attorney's fee ($93.55) shall be subtracted from this net amount. Any sick leave deducted from the applicant's sick leave balance, due to payment of sickness and accident benefits, shall be restored to that balance.

The applicant sustained a 3 percent permanent partial disability to her left elbow that equates to 13.5 weeks with compensation at the applicable rate of $184.00 per week, for an accrued total of $2,484.00. A 20 percent attorney's fee ($496.80) shall be subtracted from this award, as well as $55.18 in costs.

Jurisdiction will be reserved with respect to the possibility of additional medical treatment and/or disability attributable to the applicant's left elbow occupational injury.

NOW, THEREFORE, this

INTERLOCUTORY ORDER


The Findings and Interlocutory Order of the administrative law judge are affirmed in part and reversed in part. Within 30 days from this date, the employer shall pay to the applicant the sum of two thousand three hundred six dollars and twenty-two cents ($2,306.22); and to applicant's attorney, Daniel Kelly, fees in the amount of five hundred ninety dollars and thirty-five cents ($590.35), and costs in the amount of fifty-five dollars and eighteen cents ($55.18).

Dated and mailed March 16, 2004
gradypa . wpr : 185 : 8  ND § 3.4

/s/ David B. Falstad, Chairman

/s/ James T. Flynn, Commissioner

/s/ Robert Glaser, Commissioner


MEMORANDUM OPINION

The administrative law judge's finding regarding the date of injury was reversed as a matter of law. No disputed facts or credibility determinations were involved in the reversal.

cc: 
Attorney Daniel J. Kelley
Attorney James A. Meier

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