CHARLES R. BOOTZ, Applicant

HARNISCHFEGER CORPORATION, Employer

HARNISCHFEGER CORPORATION, Insurer

The applicant submitted a petition for commission review alleging error in the administrative law judge's Findings and Order issued in this matter on March 4, 2004. The self-insured employer submitted an answer to the petition and briefs were submitted by the parties. On January 14, 2005, the commission remanded this matter to the department for opportunity for new hearing to receive additional evidence, and a new hearing was held on April 6, 2005. At issue is whether the applicant sustained an occupational left elbow injury. If such injury is found then the nature and extent of disability and liability for medical expense also arise as issues. Finally, if a compensable injury is found, the applicant has additionally claimed compensation for disfigurement pursuant to Wis. Stat. § 102. 56.

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:

The applicant, whose birth date is April 11, 1955, was employed as a machine operator for the employer from 1977 to August 31, 2000. He was discharged for a rule violation. He most often operated a boring bar machine that is pictured and diagramed at Exhibits A, B, and C. He was required to lift various pieces of steel (called tools) weighing from 5 to 48 pounds with his left hand, and then to load the tools onto a spindle and tighten them onto the machine. He is right-hand dominant, but would use his left hand to hold the tools while he performed the tightening with his right hand. This maneuver required him to hold his left elbow out away from his body. He would load anywhere from 10 tools per day up to 100 or more per day, but averaged 50 to 60 per day.

On November 2, 1998, he saw Dr. Donald Yoder for left elbow pain that had been ongoing for several years. He told Dr. Yoder that he believed the pain came from his repetitive work activity. The applicant had also been experiencing pain in the joints of his right index and middle fingers, which it was later discovered was due to a disease called hemochromatosis. This is a genetic disorder involving poor iron absorption that usually manifests its initial symptoms in the finger joints. Dr. Yoder did not know the applicant had this disease when in early October 1998, he operated on the applicant's right index and middle fingers for what he thought was osteoarthritis. Dr. Yoder also diagnosed medical epicondylitis of the left elbow and began conservative treatment including cortisone injections. An MRI was consistent with a partial flexor tendon tear.

A lengthy period of conservative treatment failed and on January 18, 2001, Dr. Yoder performed surgical release of the conjoined flexor tendon of the left elbow. This had a very good result. On February 5, 2001, the applicant saw Dr. Theresa Siegert for increasing pain in the joints on his left index and middle fingers. Active treatment of the applicant's finger symptoms resumed and subsequent laboratory studies revealed the hemochromatosis.

Dr. Yoder wrote a letter to the applicant's attorney dated October 17, 2002, in which he opined that the applicant's employment from 1977 to 2000 was ". . at least the material contributory causative factor in the onset or progression of his left elbow condition." Dr. Yoder assessed seven percent permanent partial disability at the left elbow.

At the employer's request, Dr. David Drury examined the applicant and submitted an evaluation on February 25, 2004. Dr. Drury also visited the employer's plant to observe the performance of the applicant's job duties. He opined that the applicant's left elbow epicondylitis was attributable to his hemochromatosis and not to any industrial exposure. He further opined that the applicant's work tasks did not require maneuvers of the left elbow that could be considered risk factors for the development of epicondylitis. He indicated that the applicant sought medical attention for the left elbow beginning on November 2, 1998, at which time he had been off work for almost four weeks due to surgery performed on his right hand on October 9, 1998. Dr. Drury opined that it would be highly unlikely that a work-related epicondylitis would progress while an individual had been away from work for a four-week period. However, the applicant's elbow pain did not get worse during the period between his hand surgery and November 2, 1998. Rather, he chose to get both the hand and elbow problems addressed at the same time. Dr. Drury further opined that the applicant had a full range of left elbow motion, and that he had not sustained any permanent disability.

Dr. Yoder's opinion that the applicant's work exposure was at least a material contributory causative factor in the onset or progression of his left elbow condition is accepted as credible. The applicant's work involved repetitive strain on his left elbow over a significant number of years, and his testimony that his elbow pain progressively worsened is credible. Dr. Drury incorrectly stated in his report that the applicant's work tasks did not require' repeated, forceful dorsiflexion, flexion, pronation, and supination. The applicant's credible description of his work duties, and even Dr. Drury's description of the set-up process for the horizontal boring and milling machine, quite clearly includes tasks that require such repetitive and forceful movements of the arm and elbow. Dr. Drury acknowledged in testimony that forceful gripping and grasping activities such as those involved in gardening and wringing out wet clothes could be causative of epicondylitis. The applicant's work involved repetitive gripping and grasping activities that were at least as severe as those involved in either gardening or wringing out clothes.

Dr. Drury's opinion that the applicant's hemochromatosis was causative in the development of his elbow condition is credible, but so too is Dr. Yoder's opinion that the work exposure was a material causative factor. To be compensable, the work exposure need only be a substantial cause or a material causative factor, not the only causative factor. White v. LIRC, 2000 WI App 244, ¶ 19-20, 239 Wis. 2d 505, 620 N.W.2d 422; Universal Foundry Co. v. DILHR, 82 Wis. 2d 479, 487-88, n.5, 263 N.W.2d 172 (1978).

Accordingly, the commission finds that the applicant sustained an occupational injury to his left elbow attributable to his work exposure with the employer. The date of injury is his last day of work for the employer which occurred on August 31, 2000. Temporary total disability attributable to the work-related left elbow surgery is payable for the period claimed between January 18, 2001 and April 29, 2001 (both dates inclusive). This is a period of 14 weeks and 4 days, which at the applicable rate of $549.00 per week totals $8,052.00.

Dr. Yoder assessed seven percent permanent partial disability, but he was vague with respect to how he arrived at this figure, stating only that it was "based on [the applicant's] ongoing conditions and surgery." The applicant has experienced a very good result from his surgery, and Dr. Levin found only a two degree loss of flexion in the elbow, with otherwise excellent range of motion. Still, the applicant did undergo a significant surgery to his elbow, and Dr. Yoder wisely restricts him to moderate activity and work exposure. Neither Dr. Yoder's seven percent assessment nor Dr. Levin's assessment of no permanent disability is accepted as credible. Based on the applicant's surgery with favorable outcome, a three percent permanent partial disability at the left elbow will be awarded. This amounts to 13.5 weeks of compensation at the applicable rate of $184 per week, for an accrued total of $2,484.

The applicant's attorney is entitled to a 20 percent fee plus costs of $190.69.

Reasonably required medical expenses shall be paid as follows: Milwaukee Anesthesia Consultants in the amount of $470, of which $394.80 is due as reimbursement to CIGNA, and $75.20 goes directly to Milwaukee Anesthesia; Aspen Orthopaedic & Rehabilitation Specialists in the amount of $593.90, of which $534.51 is due as reimbursement to CIGNA, and $59.39 is due as reimbursement to the applicant; West Allis Memorial Hospital in the amount of $4,987.93, of which $4,567.27 is due as reimbursement to CIGNA, and $420.66 is due as reimbursement to the applicant; and Westside Medical Associates in the amount of $95.85 of which $86.27 is due as reimbursement to CIGNA, and $9.58 is due as reimbursement to the applicant. The claim from Milwaukee Center for Diagnostic Imaging is supported only by an invoice identifying a charge for a February 1999 MRI, and is therefore rejected. The claim from Milwaukee Hand Center is supported only by an invoice identifying charges for treatment of the applicant's fingers, and is also rejected. The applicant submitted a medical mileage expense claim for mileage incurred in November 1998 through February 2001, and only the mileage incurred after the date of injury will be reimbursed.

The applicant's claim for a disfigurement award is rejected. The picture of the applicant's surgical scar reveals that it is located on the lateral/ posterior side of his elbow. It is a benign scar that would hardly be noticeable to anyone who had not been told that it was there.

Dr. Yoder indicated that the applicant may require additional medications, and possibly steroid injections, and therefore the order will be left interlocutory.

Now, therefore, this:

The Findings and Order of the administrative law judge are reversed. Within 30 days from this date, the self-insured employer shall pay to the applicant as compensation for temporary total disability and permanent partial disability the total amount of Eight thousand two hundred thirty-eight dollars and eleven cents ($8,238.11); to the applicant's attorney, Daniel R. Schoshinski, fees in the amount of Two thousand one hundred seven dollars and twenty cents ($2,107.20), and costs in the amount of One hundred ninety dollars and sixty-nine cents ($190.69); to CIGNA as reimbursement for medical expense the sum of Five thousand five hundred eighty-two dollars and eighty-five cents ($5,582.85); to the applicant as reimbursement for medical expense the sum of Four hundred eighty-nine dollars and sixty-three cents ($489.63); to Milwaukee Anesthesia Consultants the sum of Seventy-five dollars and twenty cents ($75.20); and to the applicant as medical mileage expense the sum of Fifteen dollars and thirty-seven cents ($15.37).

Jurisdiction is reserved for such further findings and orders as may be warranted.

Dated and mailed June 14, 2005
bootzch . wrr : 185 : 4  ND § 3.42

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

In consultation with the commission, the administrative law judge indicated that he based his decision on acceptance of Dr. Drury's medical reasoning and medical opinion concerning causation. The administrative law judge did not cite any credibility or demeanor impressions of the witnesses relative to his observance of them at the hearing. For the reasons set forth in the above findings, the commission rejected Dr. Drury's opinion concerning causation and accepted the opinion given by Dr. Yoder.

cc:
Attorney Daniel R. Schoshinski
Attorney Karl A. Vandehey

Ed. Note: The decision is reproduced here as affected by a corrective amendment issued August 26, 2005.

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