BRIAN C. LINDAHL, Applicant
PAISANOS OF NEWVILLE INC, Employer
LEAR SEATING CORP, Employer
GRINNELL MUT REINSUR CO, Insurer
ZURICH AMERICAN INSURANCE 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. Delete the last sentence of the sixth paragraph of the ALJ's Findings of Fact and Conclusions of Law (the fourth full paragraph on page 3 of his decision) and the footnote to that sentence.
The findings and order of the administrative law judge, as modified, are affirmed.
Dated and mailed November 18, 2005
lindahl . wsd : 101 : 8 ND § 3.37
/s/ James T. Flynn, Chairman
/s/ David B. Falstad, Commissioner
/s/ Robert Glaser, Commissioner
1. Background.
The applicant, who is left hand dominant, was born in 1973. In 1993, the applicant injured his left ring finger in an accident involving a fan while working for a restaurant, Paisano's of Newville. Specifically, he sustained an open displaced fracture of the finger. He was treated surgically with an open reduction and internal fixation. See exhibit 4A, page 11. Following this surgery, the applicant received permanent partial disability estimated at 10 percent at the "DIP" or distal joint of the left ring finger. The permanent disability was rated for loss of extension (6%), loss of flexion (2%), and pain and cold tolerance (2%). After recovering from the surgery, the applicant was able to work without restriction.
Indeed, the applicant was having no problems with the left ring finger in March 2001 when he started working at Lear. The applicant first worked at Lear as a welder, and did that work for about a year and a half. In order to operate the welding gun, he had to squeeze it with his dominant left hand. He estimated he made about 5,000 separate welds per 10-hour shift.
In early October 2001 (well before the February 2003 injury at issue here), while working as a welder, the applicant experienced "acute shocking type pain" in the left hand while using a heavy wrench. He was off work, and then placed in a progressive return to work program. On December 3, 2001, his doctor noted his condition had resolved.
In September 2002, the applicant began working on the line, doing a job called caps and straps. In this job he used a pneumatic screw gun. He would grab a seat frame, pick up the pneumatic screw gun, attach a strap -- a kind of metal latch -- with four screws and pass the seat to the worker on his left. In addition to operating the gun, the applicant had to do repetitive grasping, pinching, pulling and lifting of the seats or seat frames. He estimated he got a "kickback" from the pneumatic gun about once or twice every four screws. He estimated he did 550 to 600 seats per shift, or put in about 2,400 screws, so that he experienced the "kickback" 600 to 1,200 times per shift.
At about the time the applicant moved from the welding area to the line, he began experiencing soreness and tightness in both his hands. Transcript, pages 48, 49. The pain did not disable him from work apparently.
After about four to six months of the line work, the applicant switched to the "LA pool," where he would basically fill in on numerous jobs for people out on workers compensation. In the first job, the applicant inserted two cables and attached two bolts to seat cushions using a torque gun. The torque gun was 12 to 15 inches in length, and it kicked back as well. Indeed, it kicked back with considerably more force. He used it to attach about 800 bolts to about 400 seats per shift.
Then, on February 10, 2003, the applicant did about two hours of work on "90 percent close-out," a job which required extending, grabbing, and pulling in order to lock what was called a J-strap that closed out or sealed up the cloth material to the seat frame. The applicant used all of his strength in a squeezing motion to attach the strap to the seat frame. He had to do this four to eight times per seat, and did a seat every 40 seconds. After two hours of this work, the applicant began experiencing sharp pain throughout his left hand, and wrist, mainly in his ring finger. He also was experiencing soreness and tightness in his right hand, increased over what he had experienced before.
The applicant sought treatment with Dr. Sellman, who after examination and x-rays, diagnosed:
Retained metal plate, left fourth finger, middle phalanx with intermittent chronic pain involving this finger and a mild swan neck deformity. It is quite likely that the plate is contributing to his intermittent chronic pain.
The doctor recommended a restriction on activity, or a plate removal procedure. The applicant opted to have the plate removed.
Dr. Sellman performed the plate removal procedure on March 19, 2003. The plate and screws were removed without complication. By April 25, 2003, the applicant had his preoperative range of motion back, with no complaints of pain. The doctor released him to full duty as of the next week. According to the applicant, he was released to work on April 30, 2003.
At the hearing, the applicant testified that he described the nature of his jobs to Dr. Sellman as set out above. Transcript, page 25. He added that the right hand pain eventually went away; Dr. Sellman's notes do not mention right hand pain. Transcript, page 26. Finally, the applicant testified that his left finger is 100 percent since the work injury. Transcript, page 27.
2. Expert medical opinion
The applicant filed an application for hearing seeking compensation for a left hand injury due to repetitive duties in the workplace. He relies on Dr. Sellman for expert medical opinion. In his first treatment note of March 10, 2003, the doctor stated:
Recently while working in his normal job at Lear Corporation he was involved in duties requiring extensive gripping with his hand. This aggravated pain in his fourth digit of the left hand.
Then, in a letter dated March 19, 2003, the doctor responded "yes" to the question "would the work activities have aggravated a pre-existing condition beyond its normal progression" referring back to his March 10, 2003 note. He stated, too, that the applicant remained in a healing period as of that time. Exhibit B.
On April 3, 2003, the doctor completed a practitioner's report (exhibit B) in which he described the work activity to which the applicant attributed his condition as
Employee required to perform repetitive grasping, pinching, pulling and lifting of car seats.
The doctor then stated that "[t]hese activities aggravated a preexisting condition beyond normal progression" and that "[s]urgery was required to cure and relieve the effects of the work-related injury." Finally, he marked the "occupational disease" causation box affirmatively on the form, stating that the applicant suffers from a condition caused by an appreciable period of work place exposure which was at least a material contributory causative factor in the onset or progression of his condition. The doctor indicated he expected further treatment.
On October 29, 2003, the doctor wrote to the applicant's attorney, to give a report of his final evaluation. He described the plate removal procedure, and added
"This plate and screw device was in place for the treatment of a fracture sustained nine years previously in a work related accident while working at a pizza parlor. It is my opinion, therefore, that this surgery in March was work related."
Dr. Sellman went on to note that the applicant had reached maximum medical improvement as of April 30, 2003 when he was released to work with no restrictions. He did believe, however, that the applicant had a mild permanent partial disability involving his left ring finger, referring to an attached Medical Report dated November 7, 2003.
In the attached Medical Report, Dr. Sellman rated left ring finger disability at the "PIP" at five percent compared to amputation, "due to loss of extension (25§)." The report listed the applicant's prognosis as "good," but stated also that there was no prior disability. The November 7, 2003 medical report also listed the following patient history:
"My left ring finger was caught in a large fan. I recovered fully but reaggravated the finger while working on the second seat line at Lear Corporation."
Finally, Dr. Sellman issued a practitioner's report on form WKC-16B dated December 3, 2003. This report again lists the work exposure which the applicant regarded as causative as "required to perform repetitive grasping, pinching, pulling and lifting of car seats." In response to how the exposure caused disability, the doctor referred to the October 29, 2003 report and November 7, 2003 medical report, and added "the permanent disability assessed is a result of the work-related aggravation cited above." In the December 3, 2003 practitioner's report, the doctor marked affirmatively both the "occupational disease" causation box (indicating that the applicant suffered from a condition caused by an appreciable period of workplace exposure, which was either the sole cause of the condition, or a material contributory causative factor in the condition's onset or progression) and the so-called "Lewellyn (1) 3" box (indicating that the described work activity caused the disability by precipitation, aggravation, and acceleration of a pre-existing progressively deteriorating or degenerative condition beyond normal progression.)
Paisanos of Newville, the restaurant where the applicant was working when he had the industrial fan accident, and its insurer Grinnell Mutual submit the April 3, 2003 report of Dr. Sellman described above.
Lear Seating and its insurer Zurich American rely on the reports of Dr. Foster at exhibit 2A. In the first report dated March 10, 2003, the doctor noted the applicant's complaints of initial bilateral hand pain with a specific focus on his left ring finger beginning after two hours of forceful repetitive grasping. Regarding the bilateral hand pain, the doctor did not think the work exposure would cause any true tissue injury or breakage, but only mild muscle fatigue lasting an hour or two.
Regarding the finger pain, Dr. Foster felt it highly unlikely that an hour or two of participation in a routine job would cause displacement or disruption of a metal plate. He stated that, "given the lack of swelling at the finger and only modest pain and no bruising, I do not believe it is probable that two hours of work would have aggravated it beyond normal progression." He added that -- regardless of causation -- he would have to wait for an orthopedic evaluation to determine if the plate was in fact displaced. Dr. Foster felt it prudent to have the applicant work in light duty until he could be evaluated.
In his second report dated December 31, 2003 -- or after the plate removal surgery -- Dr. Foster discussed the intervening medical records. He again listed the work activity that the applicant associated with his condition as the two hours performing the close-out job on February 10, 2003. He stated that there was nowhere an indication, either in an operative report or x-ray, that repetitive gripping at Lear Corporation somehow dislodged the plate. He noted there was no change in range of motion in the finger before and after the plate removal. He opined that that certain activities just made the applicant symptomatic with the plate and that those symptoms resulted in the removal rather than any specific damage to the plate or further injury due the job at Lear Seating. Asked about the five percent permanent partial rating at the left ring finger DIP joint, Dr. Sellman also opined that the applicant's 5 percent permanent partial disability to the left ring finger for lack of range of motion at the distal interphalangeal joint was pre-existing.
3. Discussion.
The ALJ found the applicant's 2003 plate removal surgery and disability to be compensable, adopting Dr. Sellman's opinion. He noted that the applicant had had only minimal problems with his finger following his recovery from the 1993 surgery before beginning work at Lear Seating; that the applicant's gripping activity at work seems likely to be causative from a commonsense or "layperson's" view; and that Dr. Foster focused on the two-hour work exposure doing the close-out job rather than applicant's entire two year history of gripping and hand intensive activity. In support of his decision, the ALJ found as a fact that the ring finger plate had loosened based on the applicant's hearsay testimony that to that effect elicited on cross-examination by Lear Seating.
The ALJ awarded temporary disability for the period claimed after ordering reimbursement of a non-industrial disability insurer (March 10 to April 30, 2003), and ordered payment of the claimed medical expense. He reserved jurisdiction over PPD, noting that the record indicates that some permanent disability remains in the applicant's finger.
On appeal, Lear Seating makes several arguments: its medical expert, Dr. Foster, was more credible than Dr. Sellman; there is no evidence of any real backing out of screws or displacement other than the applicant's self-serving hearsay; Dr. Sellman's records are not all that detailed about the actual work exposure; Dr. Sellman's opinion as stated in the October 29, 2003 letter suggested the 1993 work injury alone was responsible for the disability and surgery in 2003; in other instances when Dr. Sellman referred to the 2003 work exposure he described it as "aggravating" but did not expressly state it was "accelerating" and "precipitating" a pre-existing condition; and that causation aside, a final order should be made on permanent disability as Dr. Sellman was unaware of the prior 1993 rating.
Like the ALJ, the commission is persuaded that the applicant suffered an injury to his left hand due to an appreciable period of work place exposure that was a material contributory causative factor in the onset or progression of his disabling condition. Dr. Sellman's initial treatment note refers to extensive gripping recently while working at Lear Seating. His practitioner's report takes into account the applicant's entire history of repetitive grasping, pinching, pulling and lifting of car seats in the various tasks he performed. Further, the applicant is left handed, and every job he did at Lear Seating, including welding, and use of the torque gun and screw gun, involved extensive gripping.
Further, the applicant credibly testified that while he had had stiff or sore hands generally from his work exposure, he experienced left finger symptoms which increased dramatically when he was doing the close-out job on February 10, 2003, and that these symptoms did not go away until he had the surgery to remove the plate, and then they went away completely. This seems to indicate something in fact was wrong with the plate, not just merely that it caused temporary symptoms during certain activities as Dr. Foster suggested.
Nor does the commission discredit Dr. Sellman's opinion because he sometimes used the phrase "aggravate beyond normal progression" in describing the causal effect of the work activities, and on other occasions only said the activity aggravated his condition, rather than consistently using the more formulaic expression "precipitation, aggravation, and acceleration beyond normal progression" from Llewellyn case. It is true, of course, that the Jos. Schlitz Brewing Co. v. DILHR, 67 Wis. 2d 185, 193 (1975) case refers to the "threefold requirement" from the Lewellyn that the injury precipitate, aggravate, and accelerate a condition beyond normal progression. However, the court itself stated "[t]his aggravation of a preexisting condition basis of employer liability ... is found in and is thoroughly discussed in Lewellyn. [Italics added.]" Id, at 67 Wis. 2d 192-93. The court went on to say that the phrase used by the commission as support for a finding of compensability -- "in the nature of an aggravation" -- was not synonymous with the phrase "aggravate beyond normal progression." The court concluded that to state that a work incident "is in the nature of an aggravation" does not fall within the Lewellyn rule. Id., at 67 Wis. 2d 193-94. In short, Jos. Schlitz Brewing does not require the commission to discredit Dr. Sellman's reports because he sometimes failed to set out the full "precipitates, aggravates, and accelerates beyond normal progression" phraseology in stating his opinion.
Further, as the commission has held, and the courts have recognized, (2) the concepts of "work activity" precipitating, aggravating and accelerating a pre-existing degenerative condition beyond normal progression (Lewellyn 3) versus work exposure which is a material contributory causative factor in the progression of a disease (occupational disease), are related. Indeed, the courts and commission routinely reject the so-called "wrong box" or "magic words" theory.(3) Instead, the focus before the commission is which, if any, legal causative test applies based on the medical record, not on whether the medical expert identified the correct legal test. See for example, Jos. Schlitz Brewing Co., at 67 Wis. 2d 185, 191-92 (1975). Taken as a whole, Dr. Sellman's notes and reports -- which include the practitioner's reports where he marked the "occupational disease" causation box affirmatively -- establish causation by an appreciable period of workplace exposure to repetitive activity that was at least a material contributory causative factor in the progression of his disabling left hand condition. (4)
The commission does acknowledge that Dr. Sellman's October 29, 2003 note seems to implicate only the 1993 injury with the industrial fan at Paisanos for the 2003 problem and surgery. However, this is only one of several reports written by Dr. Sellman. The rest uniformly support causation based on the repetitive work exposure at Lear Seating with a 2003 date of disability/injury.
Finally, there is the question of whether the ALJ properly left the order interlocutory on permanent disability or should have denied permanent disability in a final order on the rationale that Dr. Sellman's rating following the plate removal in 2003 simply duplicated what the applicant had already been given (without Dr. Sellman's knowledge) for the 1993 injury. It is nearly axiomatic that an employer should not have to pay compensation for a preexisting disability that can be separated from the effects of a later work injury. Green Bay Soap Co. v. ILHR Department, 87 Wis. 2d, 561, 566, 275 N.W.2d 190 (1979); Wis. Admin. Code DWD 80.32(1). However, Dr. Sellman rated disability at the PIP joint of the ring finger, not the DIP joint where the prior disability was rated. While Dr. Sellman's rating may be subject to some reduction based on the prior rating of which he was unaware, because the 1993 rating is based on a more distal joint than the 2003 rating, they are not duplicative. Compare Wis. Stat. § 102.52(9)(i) through (L).
cc:
Attorney James A. Meier
Attorney Eric Pease
Attorney William W. Ehrke
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