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

VINCENT C BROWN, Applicant

CITY OF BELOIT, Employer
CITY OF BELOIT POLICE

CITIES & VILLAGES MUTUAL INS CO, Insurer

WORKER'S COMPENSATION DECISION
Claim No. 2003-048424


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 January 26, 2006
brownvi . wsd : 101 : 2   ND § 3.3

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

MEMORANDUM OPINION

The applicant, a police officer, was born in 1961. He does side employment including tree trimming, and a variety of construction type work (roofing, carpentry, asphalt work, painting, etc.) He claims disability to his shoulder from a November 10, 2003 incident at work when he was exchanging a "low-five" greeting with another police officer while on duty.

The applicant had had prior problems with his shoulder. Specifically, a February 14, 2003 note for an unrelated problem refers to being seen in December 2002 for a right shoulder strain. It appears a shoulder x-ray was done in September 2002, and that it showed osteophytes.

Turning to the November 10, 2003 injury at issue here: The applicant testified that on that date, he was in the police station parking lot on his way inside to talk to the police chief. He passed another officer, Officer Buckley, in the lot. According to the applicant, the men said "hi" and

"I gave him 5, and I was continuously walking toward the door and we kind of held on and that was it."

February transcript, page 9. On cross-examination, the applicant testified this was not a high five, but "to the side, out and extended." Further, the men deliberately grabbed or interlocked fingers. The applicant testified that type of greeting was something he had done in the past with Officer Buckley and other officers. February transcript, page 23-24. Another officer, Ammeson, testified the applicant held his shoulder after the incident.

The opinion of the applicant's treating surgeon, Dr. Sauer, was that the November 10, 2003 "low five" injury directly caused the applicant's shoulder injury. Exhibit F. He rated permanent partial disability at ten percent at the shoulder: five percent based on loss of the distal end of the clavicle and five percent for ongoing weakness. This report dated March 1, 2005 ties into a rating the doctor gave after a visit on February 14, 2005. In a prior visit, however, the doctor had observed:

"[The applicant] seems disturbed by a report he received from [IME] O'Brien who made an assessment without seeing Mr. Brown. Mr. Brown indicated to me the low five or high five he had at work, and also tells me to today that on March 12 he picked up a patrol bag weighing about 50 lbs. and had a pull sensation in his shoulder. It did not seem to make perfect sense that the large rotator cuff tear that he had was related to the high five alone; however, it certainly may have potentially extended the tear somewhat. Also it was apparent that there were some chronic changes in his shoulder and the exact etiology or origin of how long he has had problems in his shoulder is not exactly clear. More information would be necessary to see if the incident last March and\or any right shoulder problems may have potentially contributed to the ultimate need for right shoulder surgery."

Treatment notes following the February 2003 patrol bag incident from that period mention back and testicle pain only, Exhibits 3 to 5.

The employer and its insurer (collectively, the respondent) rely on a report from Timothy O'Brien, M.D., dated January 17, 2004. His impression was that the November 2003 injury was not significant enough nor of the appropriate biomechanical etiology to have resulted in a rotator cuff tear. He felt the claimant's rotator cuff tear was pre-existing. He noted the applicant denied any pre-exiting history of shoulder problems, but the notes suggest otherwise. He noted that "radiographs demonstrated endstage degenerative joint disease of the acromioclavicular joint" existing before the November 2003 work injury. He added that in the work injury:

the claimant's right lower extremity was positioned below the level of his waist, and he hit another employee's hand. Even with hyperextension, this is not the appropriate mechanism through which a rotator cuff is torn. This mechanism of an injury is not traumatic enough (that is to say that there is not enough force created and subsequently disseminated through the rotator cuff muscle tendon unit to result in a tear), and, as well, the rotator cuff is not in a position at risk when the arm is at the side....

Dr. O'Brien felt it likely the rotator cuff tear existed before the insignificant event that occurred on November 10, 2003, noting his weight lifting and painting were more likely causes of an attritional rotator cuff tear over time than the biomechanically insignificant event of November 10, 2003.

The ALJ found for the applicant. He believed the low five injury occurred, and that it caused the applicant's pain symptoms. Noting the "as is" rule, the ALJ credited Dr. Sauer's initial statement that the incident "may have potentially extended" a pre-existing tear, and the doctor's ultimate conclusion the injury caused the applicant's disability. The respondent argues that neither the applicant nor his doctor are credible.

Regarding the applicant's credibility, the respondent pointed to the applicant's "personal bias and disrespectful behavior" at the hearing: the applicant had to be instructed on several occasions to let the employer's counsel finish asking a question before answering it. The respondent also pointed to the applicant's strenuous off duty employment and pre-existing disease in the shoulder, in contrast to the applicant's denial of prior shoulder problems. The respondent also suggested the applicant staged the incident to avoid the mandatory overtime the next day.

Regarding Dr. Sauer's credibility, the respondent points to Dr. Sauer's statement that it did not make perfect sense the rotator cuff tear was related to the low five incident alone, his suggestion that the February or March patrol bag incident might have been a contributing cause, and his statement that the high five incident "certainly may have potentially extended the tear." The respondent also points to the biomechanical explanation given by Dr. O'Brien.

The commission is satisfied the applicant really injured himself in the November 10, 2003 incident, and was not feigning an injury. The applicant did not engage Buckley in conversation after the incident; Buckley did not even know the applicant was hurt until later. The applicant did not talk to Ammeson about the incident either, just but laughed at Ammeson's comment about missing work the next day. From Ammeson's testimony, too, it seems like pure chance he even saw anything. Nor did the applicant mention any problem to the chief, whom he saw next.

Officer Ammeson did give a statement to the insurer that he initially thought applicant seemed to "feign" shoulder pain, leading to Ammeson's joking comment to missing work the next day. However, Ammeson went on to state he felt bad about his comment later when he learned the applicant had really hurt himself. Ammeson did not say he suspected the injury -- once reported -- was a fraud. The employer, who called Ammeson to testify, did not establish through Ammeson's testimony any reason to believe the applicant was actually staging or feigning an injury.

Further, the applicant complained of constant pain from the time of the November 10, 2003 injury until the rotator cuff tear was discovered two weeks later. Thus, it seems quite credible that the applicant actually hurt himself in the low five incident. When he suffered the "low five" injury of November 2003, it had been nearly a year since the December 2002 shoulder x-ray referred to in the notes. While Dr. Sauer mentioned the February 2003 patrol bag incident, the treatment following that incident did not mention shoulder problems. Further, despite Dr. Sauer's statement of the later "low five" incident as "potentially extending the tear," his notes and reports read as a whole establish that the November 10, 2003 low five incident precipitated, accelerated and aggravated a pre-existing condition beyond normal progression.

The commission watched the videotape of the applicant's activities in April 2004, or about four or five months out from the rotator cuff surgery. The applicant's activities do seem relatively strenuous, particularly where he hand pulls a starter on a gasoline leaf blower about 15 minutes into the tape. However, this does not leave the commission with doubt that applicant injured himself as he testified, and as the presiding ALJ found.

cc:
Attorney James G. Budish
Attorney William J. Hayes


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