MARK KACZMAREK, Applicant

E Z PAINTER, Employer

TRAVELERS PROPERTY CAS CO OF AMERICA, Insurer

The employer submitted a petition for commission review alleging error in the administrative law judge's Findings and Interlocutory Order dated April 1, 2004. Briefs were submitted by both parties. At issue is whether the applicant sustained injuries arising out of his employment while performing services incidental to or growing out of such employment, and if so the nature and extent of disability and related medical expense.

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

Delete the last two sentences in the first full paragraph on page 7 of the administrative law judge's Findings of Fact and substitute therefor:

Due to the applicant's work injury on September 20, 1995, he suffered work-related compensable injuries to his arms, shoulder and neck. In addition to disability which has been conceded by the employer the applicant has also sustained five percent permanent partial disability to the shoulder.

This entitles the applicant to 25 weeks of disability at the shoulder pursuant to Wis. Stat. § 102.52(1). Since there are multiple injuries in this case (neck and shoulder), the applicant is entitled to the multiplier contained in Wis. Stat. § 102.53 which increases his permanent disability from 25 weeks to 30 weeks. However, the previously rated disability of 15 percent to the whole body for disability at the neck on a 1000-week base must be reduced. The 1000-week base becomes 975 weeks (deducting the 25 weeks at the shoulder without the multiplier); leaving 975 weeks times 15 percent for a total of 146.25 weeks (not 150 weeks) for disability at the neck; therefore, the applicant has been overpaid 3.75 weeks. Subtracting the 3.75 weeks from the 30 weeks at the shoulder leaves the applicant entitled to 26.25 weeks times the $164.00 weekly permanent disability rate for an award of $4,305.00, less attorney's fees of $861.00, leaving a total of $3,444.00 payable to the applicant.

NOW, THEREFORE, this

The Findings and Interlocutory Order of the administrative law judge are affirmed in part and reversed in part in accordance with the above findings. Within 30 days from the date of the commission's order the employer and its insurer shall pay the sum of $3,444.00 as accrued permanent partial disability; the employer and its insurer shall pay to the applicant's attorney, Richard Schouten the sum of $861.00 as a 20 percent attorneys fees; jurisdiction is reserved for such further order or awards as may be warranted.

Dated and mailed April 27, 2005
kaczmma . wpr : 175 : 8   ND § 8.7  § 8.8 

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

MEMORANDUM OPINION

The employer conceded the applicant's work injury on September 20, 1995, and contended at the hearing the applicant has already received appropriate benefits in the form of compensation for a conceded neck injury, including 15 percent permanent partial disability to the body as a whole. The employer contended the right shoulder injury did not result in any permanent disability, and that any carpal tunnel syndrome is not work-related. The applicant's application for hearing requested 15 percent permanent partial disability due to a cervical disk herniation, and 5 percent permanent partial disability to the right shoulder due to a work injury on September 20, 1995. The application for hearing does not mention any work-related carpal tunnel syndrome. The employer's answer to the petition for commission review denies disability at the shoulder and for carpal tunnel syndrome.

The commission credits Dr. Coran who found that the applicant suffered 5 percent permanent partial disability, due to his work-related right shoulder injury on September 20, 1995. The applicant's medical records reveal a consistent history of right shoulder problems. The applicant credibly testified to his ongoing shoulder problems subsequent to the work incident. The applicant testified he lifted a skid weighing 50 to 100 lbs., and as he lifted the skid over his head his right shoulder gave away and he heard a pop in his shoulder. The mechanism of injury is certainly consistent with an impingement in the right shoulder, as well as a possible rotator cuff tear. Dr. Kohn's notes reflect ongoing pain and restrictions in the applicant's right shoulder. The commission credits Dr. Kohn's assessment that the applicant's right shoulder problems and need for surgical repair were due to the work injury in 1995. Dr. Kohn was the applicant's initial treating physician following the work injury, and his treatment notes throughout the fall of 1995 reflect continuing shoulder problems and impingement. The commission finds that the applicant suffered an additional 5 percent permanent partial disability at the right shoulder as a result of his work injury.

However, the commission sets aside and reverses the administrative law judge's findings of an additional 2 percent permanent partial disability at the right wrist for carpal tunnel syndrome. The applicant did not bring any claim for carpal tunnel syndrome in his application for hearing. It is true the employer in its answer actually denied that the applicant suffered any work-related carpal tunnel syndrome even though it was not claimed in the application for hearing. It is also true the applicant's treatment notes in the fall of 1995 reflect carpal tunnel syndrome with numbness and tingling in the hand following the traumatic incident at work on September 20, 1995. The applicant's treatment notes also reflect Dr. Kohn's assessment of an occupational cervical radiculitis, as well as occupational carpal tunnel syndrome.

However, the employer appropriately notes in its petition for commission review that due process requires the applicant plead an injury in order to vest the department with the authority to make an award for such injury. In this case, the applicant did not plead any injury for carpal tunnel syndrome arising out of the work incident in September 20, 1995. Further, the applicant did not appropriately amend the application for hearing at any time prior to the hearing to make a claim for carpal tunnel syndrome. The applicant's current attorney, in response to the petition for commission review, states that the employer did not raise any objection at the hearing concerning the carpal tunnel claim. The commission recognizes that the applicant's current attorney was not on the case at the time of the hearing, and was not present at the hearing. However, a review of the administrative law judge's handwritten notes from the hearing reveal that the employer promptly objected to the applicant's claim for carpal tunnel syndrome. The administrative law judge's notes reflect that the employer contended that although the carpal tunnel syndrome was mentioned in the medical records, carpal tunnel syndrome was not plead in the application, and cannot now be added as an amendment and the employer was not prepared to defend the claim.

The commission finds that the administrative law judge erred in hearing the claim and making an order on the applicant's carpal tunnel syndrome. Although the commission can certainly understand the administrative law judge's reasoning in wanting to go ahead and seeing little value in going back to allow further evidence on the issue of causation of the carpal tunnel syndrome, due process requires the applicant plead carpal tunnel syndrome. The employer had a right to due notice of the claims being made against it. In this case, the employer did not have any notice of the carpal tunnel claim officially until the date of hearing. Therefore, on due process grounds the commission sets aside the finding of a carpal tunnel injury and resulting permanent disability, and remands to the department for a proper claim in that regard.

cc:
Attorney Michael H. Gillick
Attorney John A. Griner

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