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

MELODEE KANE, Applicant

FORT JAMES OPERATING CO, Employer

FORT JAMES OPERATING CO, Insurer

WORKER'S COMPENSATION DECISION
Claim No. 1998-035916


The applicant submitted a petition for commission review alleging error in the administrative law judge's Findings and Order issued in this matter on February 17, 2003. The self-insured employer submitted an answer to the petition and briefs were submitted by the parties. At issue are whether the applicant sustained a compensable injury to her left elbow, and if so, what are the 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 reverses his Findings and Order. The commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW


OCCUPATIONAL INJURY

The applicant, whose birth date is October 15, 1955, began her employment with the employer in 1977. She was trained in various labor positions including warehouse duties in the secondary fiber department, where she worked full-time between 1991 and 1998. She sustained a work-related injury to her left arm/hand in 1988, when a forklift bucket to which her left hand was tethered by a rope came down unexpectedly. Her arm was extended and her fingers were squeezed between the rope and the metal cage of the forklift. She was diagnosed with left cubital tunnel syndrome, and Dr. Mohr performed a left ulnar nerve transposition on March 27, 1990. A second surgical translocation of the ulnar nerve was required and performed on November 20, 1990. The second surgery was successful and the applicant returned to work with the employer in January of 1991.

The applicant continued to experience some left elbow and left hand symptoms, and saw Dr. Mohr on January 29, 1992, for reinjury of her left arm at work. Dr. Mohr took her off work for approximately one week with no expectation of permanent impairment.

Between 1991 and 1998, the applicant spent most of her work time cutting and pulling wires off of large bales of refuse paper, which was then placed in a pulper for recycling. She also drove a forklift to lift and move the bales, splitting her time among the cutting, pulling, and driving duties. Often, thousands of wires needed to be pulled by the applicant during a shift. The applicant and her co-workers used a manual wire cutter exclusively until late 1997, when the employer purchased automatic cutters. However, the automatic cutters were often in disrepair, and sometimes were not used because they were bulky and took more time to operate. The applicant worked 12-hour shifts, four days on and four days off work. A new conveyor line was installed in 1997, and this significantly increased the number of paper bales that were processed, thus increasing the applicant's wire-cutting and wire-pulling duties.

On April 16, 1998, the applicant had to jerk hard on a wire to remove it from a bale, and when she did this she experienced pain into her left elbow and numbness in her left finger. It was near the end of her shift and she reported it to her lead operator before going to see the company physician, Dr. C. A. Capasso. Dr. Capasso's clinic note of that date records:

...presents with a several-month history of crescendoing discomfort involving the left elbow.

"Since the first of the year, there has been an insidious, progressive degree of increased symptoms without an acute insult. Basically, the more frequent and heavier the handwork the more there is rebound aching discomfort at the elbow and a greater frequency of paresthesias distally.

The applicant had experienced left elbow discomfort prior to April 16, 1998, but after that incident the pain was more severe. Dr. Capasso placed her on light duty but the problem continued and she went back to Dr. Mohr on May 8, 1998. His clinic note of that date indicates that the left elbow problem " . . . has worsened, particularly with all the pushing and pulling she does at work." He diagnosed a recurrence of her left elbow problem and prescribed occupational therapy as well as light duty. The occupational therapy did not help, and Dr. Mohr ordered an EMG which had results almost identical to an EMG done in October 1990. The applicant's condition remained unchanged and the employer was unable to continue providing her light duty after March 1, 1999. She had begun part-time employment as a waitress in October 1998, and after leaving the employer began to work full-time at the waitress job.

Dr. Mohr completed a WKC-16-B on August 26, 1999, in which he checked causation boxes indicating occupational disease, as well a aggravation and acceleration of a preexisting condition beyond normal progression. He assessed an additional 10 percent permanent partial disability at the left elbow attributable to the April 1988 work injury. In his narrative explanation he wrote:

The lifting, pulling, pushing, jarring and repetitive work as well as power vibratory tools over the extended period of time have caused the injuries in dispute at this time. The past medical records are consistent with continuing exacerbations of her symptoms while at work . . .

The type of work which she has performed since those surgeries has resulted (sic) her most recent injury.

Dr. Capasso opined on November 4, 1999, that:

In summary, barring reception of new ergonomic data as it relates to Ms. Kane's job activities, this physician did not have a reasonable degree of medical certainty to state that the recent flare in her condition was due to a work-related and significant exacerbation or acceleration in the chronic condition. Instead, with a stable job exposure, there instead could be a customary evolution in the natural history of the chronic disorder to a level where previous tolerance of certain activities now became intolerable due to the pre-existing condition without a recent exacerbation or acceleration.

Dr. Capasso referred the applicant to Dr. John Bax, a hand surgeon, on September 29, 1998. Dr. Bax diagnosed irritable ulnar nerve status post two surgeries. He opined that the applicant's job duties did not consist of sufficient repetitive elbow flexion and extension activities to have caused her ulnar nerve neuropathy.

On August 21, 1998, Dr. Richard Lemon examined the applicant at the employer's request. In his report dated August 26, 1998, Dr. Lemon diagnosed chronic ulnar neuropathy unrelated to her employment with the employer, and symptom magnification. He viewed a videotape of the applicant's job duties and opined that these duties could not possibly have caused her elbow symptoms. He found no permanent disability related to her employment, and indicated that she could perform her regular job duties for the employer without any restrictions.

The commission finds Dr. Mohr's opinion of an occupational injury to the applicant's left elbow to be credible. The applicant's elbow was compromised by the 1990 injury and surgeries, and was thereafter subjected to substantial, repetitive stress inherent in her work duties. As Dr. Mohr noted, and as the applicant verified in her testimony, the wires would occasionally be frozen or stuck to the bales. This required the applicant to place significant, additional stress on her arm and elbow in order to pull the wires off the bales. Of course, this was in addition to the elbow and arm stress regularly caused by pulling wires that were not stuck or frozen. Dr. Mohr's reference to vibratory tools in his narrative opinion is unsupported, unless it was intended to be a reference to the automatic wire cutters or the forklift. Nevertheless, his opinion regarding the effect of the applicant's wire-cutting and wire-pulling activities is credible.

The record was insufficiently developed for the commission to make specific findings regarding the extent of temporary disability. It is only clear from the record that at some point after April 16, 1998, the applicant began working for the employer on light duty, and that her employment with the employer ended on March 1, 1999, because the employer no longer had light duty available for her. Dr. Mohr found a healing plateau on March 24, 1999, which would therefore be the latest date for which any temporary disability could be found. The applicant should submit to the employer a detailed claim for any temporary disability sustained between April 16, 1999 and March 24, 1999, less any nonindustrial benefits paid for the same period. A 20 percent attorney's fee would apply to this temporary disability. The employer should then make immediate payment of this claim, subject to any reasonable defense. If the parties cannot agree on the proper amounts due for temporary disability then opportunity for new hearing shall be granted.

Dr. Mohr credibly assessed an additional 10 percent permanent partial disability to the applicant's left elbow, which amounts to 45 weeks of compensation at the applicable rate of $179.00 per week. This is accrued in the amount of $8,055.00. A 20 percent attorney's fee will be subtracted from this award.

Reasonably required medical expenses were incurred as follows: $725.00 from Green Bay Orthopedics, $30.00 of which was paid by the applicant, $604.21 of which was paid by Constitution States Insurance, and $55.00 of which was paid by United Health Insurance; $174.00 from Northeast Wisconsin Center for Surgery and Rehabilitation (Dr. Bax), $158.95 of which was paid by Traveler's Insurance; and $721.00 from Bellin Hospital, all of which was paid by Traveler's Insurance.

VOCATIONAL REHABILITATION

With regard to the applicant's claim for vocational rehabilitation benefits, the standard for department/commission review of Department of Vocational Rehabilitation eligibility determinations continues to be found in Massachusetts Bonding and Insurance Co. v. Industrial Commission, 275 Wis. 505, 512, 82 N.W.2d 191 (1957):

Unless it is shown before the commission that highly material facts were misrepresented to or withheld from the state board or that the state board has applied an interpretation of the rehabilitation laws which is entirely outside the reasonable scope of interpretation and hence a clear abuse of administrative power, the Industrial Commission must find that any applicant who is receiving aid from the state board is also entitled to it.

At the hearing held on November 13, 2002, there was extensive questioning of Krystyne Mazur, the DVR counselor who approved the applicant's retraining plan for a surgical technician program. However, none of this questioning focused on the applicable DVR standards for applying the federal rehabilitation laws. Rather, the focus was on how much the applicant earned in her job as a waitress between October 1998 and February 2001, and on Ms. Mazur's determination that the applicant was underemployed as a waitress.

The applicant's waitressing employer gave inconsistent testimony concerning how much money the applicant actually made in that employment. However, based on the hours worked and wages/tips received, as reported in the summaries provided in Exhibit 10, the applicant averaged 1368 hours of waitressing employment in each of the two years reported (1999 and 2000). She averaged a gross income of $20,421.00 in each of those years. While this equates to an average hourly wage of $14.93, on a 52-week basis it equates to an average weekly wage of only $392.71. The applicant was earning an average weekly wage of $720.00 in her employment with Fort James Operating Company.

The DVR's guidelines for determining eligibility for federal vocational rehabilitation benefits changed for rehabilitation claims made on or after October 1, 1998. (1) The DVR's new, "consumer driven" guidelines eliminated the prior requirements of job search and wage comparison preliminary to approval of federal rehabilitation benefits for an individual. Instead, very basic criteria are used to determine eligibility. The DVR's new "entry policy" is set forth in John Neal and Joseph Danas, Jr., Worker's Compensation Handbook (5th Ed. 2003), Appendix 4, p. 61:

Assessment for Determination of Eligibility

To be eligible for VR services, a consumer must:

It is presumed the consumer can benefit in terms of an employment outcome. Therefore, trial work experiences and extended evaluation are not used by DVR for the purpose of determining an individual's initial eligibility for VR services. (2)

For injuries occurring on or after January 1, 2002, (3) Wis. Stat. § 102.61(1g) established that individuals offered "suitable employment" paying not less than 90 percent of their preinjury average weekly wage are ineligible for temporary disability, travel, and maintenance expenses otherwise provided in Wis. Stat. § § 102.43(5) and 102.61(1). This statute is not applicable to the applicant's 1998 injury, and even if it were, after her termination the applicant was not offered suitable employment paying not less than 90 percent of her previous average weekly wage.

Accordingly, neither of the Massachusetts Bonding standards for overturning a DVR eligibility determination is applicable to the applicant's case. The fact that the applicant may have understated her hourly wage to Ms. Mazur is immaterial, considering the fact that her average weekly wage as a waitress was only about 55 percent of her average weekly wage with the employer, and considering the DVR's "consumer driven" eligibility criteria. While some may consider the DVR's eligibility criteria applicable to the applicant's claim to be too lax, those criteria are derived from the administrators of the Federal Vocational Rehabilitation Act, and are by definition consistent with reasonable interpretation of the federal rehabilitation law.

Pursuant to Wis. Stat. § 102.43(5), the applicant is therefore eligible for up to 80 weeks of temporary disability while receiving instruction in her DVR-sponsored training program. The necessity for training and temporary disability benefits beyond 80 weeks is subject to review by the department. Pursuant to Wis. Stat.§ 102.61(1) and (1r), the applicant is also entitled to travel and maintenance expenses for up to the first 80 weeks of her training, and eligibility for such expenses beyond 80 weeks is subject to department review. The records made at the hearing concerning the applicant's school attendance dates, extent of temporary disability, and travel and maintenance expenses were also insufficiently developed, and therefore the order will be left interlocutory with respect to the exact amounts due. The applicant should provide the employer with a detailed claim for this compensation, which will then become immediately due, subject to any reasonable defense. The applicable attorney fees shall be deducted from this compensation and paid to applicant's attorney. If the parties cannot agree on the proper amounts due, opportunity for new hearing regarding this issue shall be afforded.

NOW, THEREFORE this

INTERLOCUTORY ORDER


The Findings and Order of the administrative law judge are reversed. Within 30 days from this date, the employer shall pay to the applicant as compensation for permanent partial disability the sum of six thousand four hundred forty-four dollars ($6,444.00); to applicant's attorney, Robert Janssen, fees in the amount of one thousand six hundred eleven dollars ($1,611.00); to Constitution States Insurance the sum of six hundred four dollars and twenty-one cents ($604.21); to United Health Insurance the sum of fifty-five dollars ($55.00); to Traveler's Insurance the sum of eight hundred seventy-nine dollars and ninety-five cents ($879.95); and to the applicant as reimbursement for medical expense which he paid the sum of thirty dollars ($30.00).

Jurisdiction is reserved with respect to the specific amounts due for temporary disability and vocational retraining benefits, as noted in the above findings.

Dated and Mailed  March 19, 2004
kaneme . wrr : 185 : 8 ND § 5.39

/s/ David B. Falstad, Chairman

/s/ James T. Flynn, Commissioner

/s/ Robert Glaser, Commissioner


MEMORANDUM OPINION

If there was any disagreement between the administrative law judge and the commission regarding credibility issues, it was concerning the events of April 16, 1998. The administrative law judge was unconvinced that the applicant sustained an acute onset of left elbow and hand pain on that day, citing the doctor's and nurse's histories, which did not describe an acute injury. The commission found credible the applicant's testimony that she experienced acute pain when pulling on the bale wires on April 16, 1998, but inferred from her testimony that this was the culmination of a "crescendoing discomfort" as Dr. Capasso described it, attributable to an occupational injury.

cc: 
Attorney Robert J. Janssen
Attorney Robert H. Zilske


Appealed to Circuit Court.

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Footnotes:

(1)( Back ) See Lori Nieves v. Reynolds Metal Company and Pacific Employer's Insurance Company, WC Claim No. 1999-012552 (LIRC November 7, 2003); and Robert Manske v. Rasch Construction and Engineering and Virginia Surety, WC Claim No. 1998-016330 (LIRC June 24, 2002).

(2)( Back ) See also, the DVR's handout entitled "Information For DVR Consumers with Worker's Compensation Claims," which explains that the DVR follows the Federal Rehabilitation Act, which is a separate law from the Wisconsin Worker's Compensation Act. Robert Manske v. Rasch Construction and Engineering and Virginia Surety (supra)."

(3)( Back ) See 2001 Wisconsin Act 37.

 


uploaded 2004/03/23