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

MUBARIK AHMAD KHAN, Applicant

SERA TEC BIOLOGICALS LTD PTR, Employer

LUMBERMENS MUTUAL CAS CO, Insurer

WORKER'S COMPENSATION DECISION
Claim No. 2002-048161


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.

ORDER

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

Dated and mailed August 25, 2005
khanmu . wsd . doc : 101 : 1 ND § 8.23

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

MEMORANDUM OPINION

The applicant, who was born in 1940, began working for the employer as a phlebotomist at a blood center in 1999. He claims repetitive reaching at work caused him disability from a shoulder impingement condition. Specifically, the applicant's duties required reaching with the arm extended at about shoulder level or higher (May 26, 2004 transcript, pages 13-14) (1),  and then twisting the hand to screw a blood plasma machine cap open and closed. He did this approximately 60 times (30 open, 30 close) in a 9 or 10 hour shift.

The applicant noted the onset of shoulder pain in March 2002, when the blood center began experiencing increased donor volume after another center closed in December 2001. He complained of right shoulder and arm pain to his supervisor. May 2004 transcript, page 13.)

The applicant's treating doctor, Dr. Razzaq, completed a practitioner's report indicating he treated the applicant from April to October 2002 for right arm pain, tendonitis, and chronic stress or strain of the right upper extremity, which the doctor associated with frequent use of the right upper extremity. He also completed a questionnaire prepared by the applicant's attorney, indicating that the applicant had right extremity symptoms including a rotator cuff impingement syndrome because of repetitive motion and wear and tear from his work duties as a phlebotomist.

The employer and its insurer (collectively, the respondent) retained Steven Grindel, M.D., who examined the applicant in August 2003. His September 2003 report documents that the applicant had no complaints of right shoulder problems before March 2002. The doctor noted positive testing for shoulder impingement on the right on examination, and diagnosed "right shoulder impingement." He did not, however, think the applicant's condition was caused by work exposure but that his symptoms were the manifestation of a normally deteriorating underlying condition.

The ALJ credited Dr. Razzaq's opinion, and the respondent petitioned for review. On appeal, the respondent suggests the applicant's underlying condition might have been caused by his strenuous duties as a veterinarian before coming to America in the mid-1990s. However, the medical experts do not offer that opinion. The respondent also suggests there was no evidence the applicant's activities were over shoulder height as the ALJ found. However, the applicant testified the plasma machine top was 5'6" inches off the ground and that he is 5'8."

The respondent also suggests the ALJ erred in noting that Dr. Grindel did not come up with an alternative cause for the shoulder problem. The respondent points out that it does not have the burden of proving what caused the injury. This, of course, is true; a worker's compensation claimant has the burden of proving beyond a legitimate doubt all the facts essential to the recovery of compensation Leist v. LIRC, 183 Wis. 2d 450, 457 (1994). Yet when gauging the relative credibility of medical experts a decision-maker may consider what a medical expert believes did cause the disability if not employment. That is not the same as erroneously putting the burden of proof on the employer.

In this case, the applicant engaged in shoulder level or higher reaching, and the applicant also had to twist his hand, presumably with at least some force, with his arm extended and raised. The applicant does have shoulder impingement symptoms--even Dr. Grindel diagnoses that condition. If the applicant did have a pre-existing, yet asymptomatic, degenerative shoulder condition, it is reasonable to conclude the work exposure caused it to progress. The ALJ, who saw the applicant testify, found him credible as to his work activity and the onset of his symptoms. On this record, the ALJ reached the most reasonable conclusion, and the commission affirms and adopts his findings.

cc:
Attorney Sean M. Spencer
Attorney David J. Liski


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Footnotes:

(1)( Back ) The applicant testified he is 5'8" and that top of the machine was 5'6".

 


uploaded 2005/08/29