BRUCE CHESNEY, Applicant

SOUTHERN SYSTEMS INC, Employer

TRAVELERS INDEMNITY COMPANY OF ILLINOIS, 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, except that it makes the following modifications:

1. In the last sentence of the eleventh paragraph of the ALJ's Findings of Fact and Conclusions of Law, delete

"amounting to $20,888.70 [120.05 weeks, at $174 per week, the PPD rate in effect on the date of injury]"

and substitute

"amounting to $22,035.71 [126.642 weeks, at $174 per week, the PPD rate in effect on the date of injury]".
.

2. Delete the first paragraph of the ALJ's order, and substitute:

"Within 30 days from the date of this order, the employer and its insurer shall pay all of the following:

"1. To the applicant, Bruce E. Chesney, Seventeen thousand three hundred forty-seven dollars and twenty-three cents ($17,347.23) in disability compensation.

"2. To the applicant's attorney, James A. Pitts, the sum of Four thousand four hundred seven dollars and fourteen cents ($4,407.14) in attorney fees, plus Two hundred eight-one dollars and thirty-four cents ($281.34) in costs ."

NOW, THEREFORE, the Labor and Industry Review Commission makes this

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

Dated and mailed June 30, 2004
chesneb . wmd : 101 : 3    ND § 5.18

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

The applicant, a journeyman carpenter millwright, has sustained carpal tunnel syndrome, cubital tunnel syndrome, and degenerative changes in the carpo- metacarpal (CMC) joint of the index and middle fingers from occupational exposure. As a result he has undergone surgeries, including most recently on July 18, 2000, a fusion of the CMC joint of the index and middle fingers. The only issue on appeal is the calculation of the permanent partial disability award.

The ALJ, the respondent's attorney, and the applicant's attorney all assume the same disability percentages at the same joints as rated by the applicant's doctor, Steven J. Grindel, M.D., following the July 18, 2000 surgery:

• 26 percent to the right index finger
• 10 percent to the right long (middle) finger
• 15 percent at the right wrist
• 10 percent at the right elbow

The parties also agree on the applicable rate of compensation for permanent partial disability, $174 per week. Further, the statutes and administrative code set out fairly specific rules for the calculation of disability, including multiple disabilities, at the various specified joints. As indicated in the body of this decision, the commission concludes the applicant is entitled to 126.642 weeks of permanent partial disability totaling $22,035.71.

The commission's calculation starts with the basic or "pre-multiplier" disability weeks for the index and middle fingers. In both cases, the commission uses the base for a loss at the proximal joint. A disability rating based on a percentage loss of the index finger is paid relative to a 50-week base for a loss at the proximal joint under Wis. Stat. § 102.52(9)(b). A disability rating based on a percentage loss of the middle finger is paid relative to a 35-week base for a loss at the proximal joint under Wis. Stat. § 102.52(9)(f).

NOTE: The commission realizes that calculations of both parties' attorneys assume the higher, 60-week and 45-week bases for the losses to index and middle fingers under Wis. Stat. § 102.52(9)(a) and (e). That is, the parties assume that Dr. Grindel's ratings of "26% to the index finger and 10% to the long finger" (1)    should be applied to the statutory base for a loss "of an [index or middle] finger and the metacarpal bone thereof."

However, the commission cannot agree. Where, as here the doctor's rating is just "to the index finger" or "to the middle finger" -- and there is no disability specified to the metacarpal bone or at the carpo-metacarpal joint -- the disability percentage is applied to the statutory base for a loss "of an [index or middle] finger at the proximal joint" under Wis. Stat. § 102.52(9)(b) and (f).  (2)   Using the proximal joint base under Wis. Stat. § 102.52(9) when a doctor rates "disability to the finger" makes sense not only because that is where the finger ends at the junction with the palm, but also in light of the fact that Wis. Stat. § 102.52(9)(a) and (e) refer to the "finger and metacarpal bone thereof."

The commission also appreciates that the applicant had fusion surgeries at the carpo-metacarpal joints of both the index and middle fingers, indicating a fusion of the metacarpal bone to the wrist. Under other facts, this might justify a rating relative to a loss of the finger and the metacarpal bone thereof. (3)   Here, however, Dr. Grindel rated a fifteen percent disability compared to amputation at the wrist, as well as the ratings at the fingers, following the July 2000 CMC fusions. The commission infers, then, that this wrist rating addresses any loss affecting the carpo metacarpal joint that might otherwise be addressed by a rating at the "finger and the metacarpal joint thereof."

Using the 50-week base for a loss to the index finger at the proximal joint under Wis. Stat. § 102.52(9)(b), a 26 percent loss gets a pre-multiplier disability of 13 weeks. Using the 35-week base for a loss to the middle finger at the proximal joint under Wis. Stat. § 102.52(9)(f), a 10 percent loss gets a pre-multiplier disability of 3.5 weeks.

The next step is to determine the pre-multiplier disability weeks for wrist. Under the schedule at Wis. Stat. § 102.52(3), a percentage loss at the wrist is paid relative to a 400-week base. However, under Wis. Admin. Code DWD § 80.50 (4)    the number of weeks attributable to more distal (further away from the trunk of the body) disabilities are deducted from the number of weeks in the schedule for more proximal (closer to the trunk) disabilities. The code further provides that the deduction is done before the application of a multiple injury statute. In this case, the weeks of disability for the fingers are subtracted from the 400-week base for the wrist, leaving a 383.5-week base {400-(13+3.5)}. Applying the 15 percent rating to the 383.5-week base for the wrist yields a pre-multiplier disability at the wrist of 57.525 weeks.

The next step is to determine the pre-multiplier disability for the elbow. Under the schedule at Wis. Stat. § 102.52(2), a percentage loss at the elbow is paid relative to a 450-week base. Again, however, the more distal disabilities must be subtracted, leaving a 375.975-week base {450 - (13 + 3.5 + 57.525)}. Applying the ten percent disability rating for a loss at the elbow results in a pre-multiplier base award at the elbow of 37.5975 weeks.

Next, the commission must determine the "multiple injury variations" under Wis. Stat. § 102.53. (5)    Under that statute, where an injury causes more than one permanent disability specified in Wis. Stat. § § 102.44(3), 102.52 and 102.55, the period for which indemnity shall be paid for each additional equal or lesser disability is increased according to a formula.

NOTE: The parties disagree what constitutes an "equal or lesser disability." The applicant contends the "lesser disability" is the one with the smaller percentage of impairment, regardless of what body part is injured or how many weeks of PPD are awarded for such an impairment; the respondent says the "lesser disability" is the one which results in the payment of the fewer weeks of PPD.

The commission follows the respondent's view. This makes sense intuitively, because the lesser disability should result in the lower amount of compensation. It also tracks the wording of Wis. Stat. § 102.52 (intro.) which refers to "the following schedule of permanent partial disabilities" and then goes on to set out the schedule listing various weeks on the basis of a total loss at various joints. Similarly, Wis. Stat. § 102.53 (intro.) refers to "the period for which indemnity shall be payable for each additional equal or lesser disability shall be increased." Both statutes seem to equate the disability with the weeks or period of compensation, rather than just the percentage of impairment of the particular joint.

In this case, the injury causing the most disability is the 57.525 weeks paid for the loss at the wrist. The other disabilities are the lesser disabilities.

The general rule under Wis. Stat. § 102.53(4), is that in cases of disabilities to two or more members of the body, the lesser or equal disability is increased by 20 percent. In this case, then, the disability at the elbow is increased by twenty percent to 45.117 weeks (1.2 times 37.5975 weeks).

Under Wis. Stat. § 102.53 (2), if there are two or more disabilities on the same hand, the first equal or lesser disability is increased by 100%. In this case, that would be the 3.5-week disability at the middle finger, which would be increased by 3.5 weeks to 7 weeks of disability. (6)    Under Wis. Stat. § 102.53(5), the aggregate result for members on the same hand after accounting for the increase under Wis. Stat. § 102.53(2) are taken as a unit for the purposes of applying the general 20 percent increase under Wis. Stat. § 102.53(4). This means that the 13 weeks of disability at the index finger is added to the 7 weeks of disability at the middle finger and the sum (20 weeks) is increased by 20 percent, yielding a "unit" rating for the fingers of the right hand of 24 weeks.

Following the table format used by the parties:

In all, the award thus, is 126.642 (24 + 57.525 + 45.117) weeks of permanent partial disability compensation which, at the weekly rate of $174, totals $22,035.71. This is lower than the amounts obtained by the parties (who used the higher bases for the fingers which erroneously included a loss of the metacarpal bone), but a little higher than the amount obtained by the ALJ. (7)    In his decision, the ALJ indicated the award began to accrue on December 28, 2001, so it is fully accrued at this point.

cc:
Attorney James A. Pitts
Attorney John A. Griner

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(1)( Back ) See exhibit C, Grindel report of December 28, 2001.

(2)( Back ) See Sorenson v. Flambeau Plastic Company, WC Claim no. 1999044246, 2002 WI Wrk. Comp. LEXIS 77 (LIRC, March 13, 2002). In that case, the commission stated the "loss of the middle finger is rated measured at the proximal joint, not at metacarpal, as the applicant contends."

(3)( Back ) See, for example, Sorenson, supra, where its rating for an index finger at the metacarpal bone because "the evidence clearly indicates the applicant had an amputation at the metacarpal bone." Specifically, the ALJ's findings documented a "ray amputation" performed on the index finger after a prior amputation just distal to the MCP caused an infection. A "digital ray" is the digit and the corresponding metacarpus, Dorland's Medical Dictionary (27th ed., 2000), so under those facts a disability accounting for both the finger and metacarpal was appropriate.

(4)( Back ) DWD 80.50 Computation of permanent disabilities. (1) In computing permanent partial disabilities, the number of weeks attributable to more distal disabilities shall be deducted from the number of weeks in the schedule for more proximal disabilities before applying the percentage of disability for the more proximal injury, except that:
(a) Such a deduction shall not include multiple injury factors under s. 102.53, Stats.; and
(b) Such a deduction shall include preexisting disabilities.
(2) The number of weeks attributable to scheduled disabilities shall be deducted from 1,000 weeks before computing the number of weeks due for a non-scheduled disability resulting from the same injury. This deduction shall not include multiple injury factors under s. 102.53, Stats.
(3) Multiple injury factors under s. 102.53, Stats., do not apply to compensation for disfigurement under s. 102.56, Stats.

(5)( Back ) 102.53 Multiple injury variations. In case an injury causes more than one permanent disability specified in ss. 102.44 (3), 102.52 and 102.55, the period for which indemnity shall be payable for each additional equal or lesser disability shall be increased as follows:
(1) In the case of impairment of both eyes, by 200%.
(2) In the case of disabilities on the same hand covered by s. 102.52 (9), by 100% for the first equal or lesser disability and by 150% for the 2nd and 3rd equal or lesser disabilities.
(3) In the case of disabilities on the same foot covered by s. 102.52 (14), by 20%.
(4) In all other cases, by 20%.
(5) The aggregate result as computed by applying sub. (1), and the aggregate result for members on the same hand or foot as computed by applying subs. (2) and (3), shall each be taken as a unit for applying sub. (4) as between such units, and as between such units and each other disability.

(6)( Back ) Under Wis. Stat. § 102.53(2), in cases of disability to two or more fingers on the same hand covered by Wis. Stat. § 102.52 (9), the weeks for the first additional equal or lesser disability is increased by 100 percent. In its calculation in this case, the WC Division applied the 100 percent increase under Wis. Stat. § 102.53(2).

On this point, the commission notes that somewhat similar language appears in Wis. Stat. § 102.54 which provides for increasing a disability award by 25 percent if "an injury to employee's dominant hand causes a disability specified in s. 102.52(1) and (9)." However, the WC Division construes the language in Wis. Stat § 102.54 to mean a total loss or amputation, not a percentage loss of the joint. Indeed, one of the department's interpretative footnotes so states that dominant hand multiplier applies to "any amputation beyond 2/3 of a distal phalanx or 100 percent loss of use of any joint on the hand or arm." DWD Worker's Compensation Act of Wisconsin, with Amendments to January 1, 2002, form WKC-1-P (R. 07/2002), footnote 188.

LIRC has followed the WC Division's construction of the dominant had multiplier under Wis. Stat. § 102.54, pointing to the footnote and explaining that a percentage loss to a finger (or any schedule part), technically, is "specified in" Wis. Stat. § 102.55. See Nelson v. Associated Milk Producers Inc., WC Claim No. 1994040617 (LIRC Sept. 30, 1998) and Schaalma v. B R Metal Tech Inc., WC Claim no. 1996-060887 (LIRC Apr. 5, 2001). LIRC's decision in Schaalma was affirmed in an unpublished decision by the court of appeals in Schaalma v. LIRC, No. 01-3210 (Wis. Ct. App. May 23, 2002) [http://www.wicourts.gov/html/ca/01/01-3210.htm].

In other words, the WC Division applies the "same hand" multiplier under Wis. Stat. § 102.53(2) to less than total losses at fingers or joints within the hand, but only applies the "dominant hand" multiplier under Wis. Stat. § 102.54 in cases of amputations or 100 loss. Concerned about the apparent inconsistency, commission staff contacted WC Division personnel, who verified the practice. The commission follows it here, noting that Wis. Stat. § 102.53(2) uses the different, more general term "covered by" (as opposed to "specified in") and that the interpretative footnote by its terms only covers the dominant hand multiplier under Wis. Stat. § 102.54.

(7)( Back ) The commission obtained the WC Division's computer-generated claim information in this case. It establishes that the 120.05-week figure used in the ALJ's award was based on loss of use ratings to the various joints of index and middle fingers, rather than on Dr. Grindel's ratings for loss to the fingers as a whole as adopted by the ALJ. 

uploaded 2004/07/02