LOIS A LOSEY, Applicant
AMERICAN GENERAL LIFE INSURANCE CO, Employer
ILLINOIS NATIONAL INS 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, except that it makes the following modifications:
1. In the first paragraph beginning on page 8 of the ALJ's decision delete "through the present." and insert:
"through the date of hearing. The applicant is therefore entitled to temporary disability compensation from November 2, 2002, through January 13, 2004, or 62 weeks and 2 days, at the weekly rate of $384.67 (two-thirds her average weekly wage of $577.00), for a total of $23,977.56."
2. Delete the first paragraphs of the ALJ's Interlocutory Order and substitute:
"Within 30 days, the employer and its insurer shall pay the applicant, Lois Losey, Eighteen thousand eight hundred twenty-one dollars and ninety-seven cents ($18,821.97) in disability compensation, and pay her attorney, Israel Ramon, the sum of Four thousand seven hundred ninety-five dollars and fifty-one cents ($4,795.51) in fees and Three hundred sixty dollars and seven cents ($360.07) in costs."
3. After the last sentence in the second paragraph of the ALJ's Interlocutory Order, insert:
"In addition, the respondent and insurer shall reimburse two non-industrial insurers for medical expenses paid under Wis. Stat. § 102.30(7) in the following amounts: to Aetna, Twenty five thousand two hundred one dollars and seventy-seven cents ($25, 201.77) and to United Healthcare Four hundred fifty-eight dollars and twenty-five cents ($458.25)."
The findings and order of the administrative law judge, as modified, are affirmed.
Dated and mailed April 22, 2005
loseylo . wmd : 101 : 1 ND § 5.9
/s/ James T. Flynn, Chairman
David B. Falstad, Commissioner
/s/ Robert Glaser, Commissioner
The applicant's treating surgeon, Dr. Chamoy, diagnosed, as set out above carpal tunnel syndrome, tendinitis and epicondylitis, which he attributed to the use of a computer mouse. The ALJ found the conditions diagnosed by the doctor were indeed caused by work, and paid TTD to the date of his decision. The ALJ's order paid outstanding medical expenses but did not reimburse non-industrial health insurers for their payments to treating providers.
On appeal, the employer asserts the applicant has not proven the work exposure caused the applicant's conditions, citing as more credible its examiner's opinion that the conditions are not work related in part because they got worse when she stopped working. The employer also asserts the ALJ erred in paying TTD to the date of the hearing. The applicant, for her part, objects to the ALJ's failure to reimburse her non-industrial insurers.
Regarding the principle issue, causation, the commission appreciates that the applicant is diabetic and at least one doctor noted progressively worsening pain and numbness in both hands and forearms in February 2003. However, the applicant primarily complained of right hand problems and did use a mouse with her right hand. Her right hand problems are worse than her left, so it may reasonably be concluded that the use of the mouse at work contributed to the progression of her condition in her right arm. In cases of causation by occupational disease, the work exposure need not be the sole cause of the disability; an injury is compensable if the work injury is only a material contributory causative factor.(1)
The employer emphasizes its doctor's opinion that the condition is not work related because it did not improve, and in fact got worse, when she stopped working. The applicant testified her right arm symptoms continued to get worse for a month or two after she stopped working and then got no worse. The medical expert retained by the employer indeed questions whether the applicant's complaints were caused by work as she remained symptomatic long after she stopped working. Exhibit 1, report of Shivarim, response to interrogatory 3. However, Dr. Shivarim does not explain why, symptoms caused by work necessarily must improve after the work ends.
Treating surgeon Chamoy opines the applicant's epicondylitis condition was caused by "mousing." While his report also says that the underlying literature suggests use of a "mouse contributes to carpal tunnel syndrome, tendinitis, and possibly epicondylitis" his actual medical opinion is not expressed in terms of mere possibility. Exhibit F, report of Chamoy. The commission reads Dr. Chamoy's opinion to be that is it possible for mousing to cause epicondylitis in general, and that it in fact caused the condition in this specific case.
The commission realizes that while the applicant started treating with Dr. Chamoy in February 2003, his notes do not mention the epicondylitis until November 2003. However, he was treating the applicant primarily for carpal tunnel syndrome. Further, Dr. Vosters' October 28, 2002 note does mention "pain over the right lateral epidcondyle ... worse with clerical work which involves using a computer tract ball as well as a mouse." Dr. Vosters, of course, would have treated the applicant before she stopped working and shortly after the September 30, 2002 date of injury. Finally, the applicant credibly testified that she had the elbow pain back then.
This leaves the questions of the payment of TTD to the date of decision and the reimbursement of the non-industrial insurers.
The applicant admits in its brief TTD should only be paid to the date of hearing. Similarly, the employer insurer does not claim that the non-industrial health insurers should not be reimbursed under Wis. Stat. § 102.30(7) apart from its general arguments on causation. Accordingly, the commission amended the ALJ's decision on these collateral issues.
cc:
Attorney Israel Ramon
Attorney Bonni D. Fredrick
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