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

PAUL DAUBERT, Applicant

FREIMUTH MASONRY INC, Employer

INTEGRITY MUTUAL INSURANCE CO, Insurer

WORKER'S COMPENSATION DECISION
Claim No. 2003-022097


The applicant submitted a petition for commission review alleging error in the administrative law judge's Findings and Order issued in this matter on October 6, 2005. Freimuth Masonry, Inc. and Integrity Mutual Insurance Company (respondents) submitted an answer to the petition and briefs were submitted by the parties. At issue is whether the applicant sustained an occupational injury in the form of bilateral carpal tunnel syndrome, arising out of and in the course of his employment with the employer. If a compensable injury is found, the nature and extent of disability and liability for medical expense also arise as issues.

The commission has carefully reviewed the entire record in this matter and hereby affirms the administrative law judge's dismissal of the applicant's claim, but substitutes the following findings for those made by the administrative law judge. The commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

At the outset, the commission notes that the administrative law judge accepted into evidence records of the applicant's prior criminal convictions as listed in the Wisconsin Circuit Court Access of the Consolidated Court Automation Programs (CCAP) (Hearing Exhibit Resp. 2). The commission agreed with the applicant's argument that pursuant to Wis. Stat. § 906.09(2), this evidence should have been excluded because its probative value to this proceeding was substantially outweighed by the danger of unfair prejudice. Although it does not appear from his decision that the administrative law judge relied upon this evidence in reaching his conclusions, the commission certainly did not, and hereby formally excludes Hearing Exhibit Resp. 2 from the proceeding.

The applicant, whose birth date is September 26, 1974, began his employment with the employer on or about May 3, 2003. He performed general labor including transporting and dumping cement with a wheelbarrow, pounding two-foot iron stakes into the ground with an eight-pound mallet (the stakes supported wooden boards for forming), nailing the forming boards together, pulling the stakes out of the ground, knocking the forming boards loose after the cement had dried, cleaning dried cement off the boards by banging them with a hammer, and laying plastic drainage pipe around basement foundation perimeters. He testified that three or four days after he started this work his hands and fingers began to hurt while pulling out the stakes, and that he mentioned to the employer that his fingertips were getting numb, but was told that was common for new people on the job.

The applicant went to a walk-in clinic after work on May 14, 2005, and carpal tunnel syndrome was tentatively diagnosed. He was prescribed Vicodin and Hydrocodone, which were not effective in relieving his symptoms. He was seen again as a walk-in on May 15, 2005, and Oxycontin was prescribed. He was referred to his family physician, Dr. John Weber, whom he saw on May 20, 2003. Dr. Weber recorded the applicant's complaints of pain and numbness in his hands and wrists, with any activity making the pain worse. He noted that Oxycontin helped the applicant sleep. Dr. Weber diagnosed bilateral carpal tunnel syndrome, changed the prescription to Oxycodone, and added Naproxen as an anti-inflammatory. He restricted the applicant from working with his hands, and as a result the employer had no work for him. The applicant officially quit his employment with the employer in early November 2003, and found new employment as a glazier that required only light duty.

The applicant's hand and wrist problems continued, and Dr. Kenneth Viste performed an EMG study on or about June 24, 2003, a copy of which is not in the record, but which Dr. Michael Borkowski summarized in his report as showing abnormal bilateral distal slowing at the wrists, compatible with carpal tunnel syndrome. The slowing on the left was slightly more pronounced than on the right. A medical invoice reveals that Dr. Benjamin Begley performed one carpal tunnel release on September 11, 2003, and Dr. Michele Osborne performed the other release on October 2, 2003. However, neither operative report is in the record. The surgeries provided some relief from the applicant's symptoms, but he still experiences pain in his wrists and hands, particularly with activity. After an 8-hour work shift in his new employment his pain level is at 3 or 4, instead of at 10, as it was when he was working for the employer.

Dr. Weber completed a WKC-16-B on June 22, 2004, indicating occupational causation and assessing between five and ten percent permanent partial disability (using AMA Guidelines). Dr. Weber also testified, and indicated that he believed the applicant did develop carpal tunnel syndrome from his occupational exposure with the employer, even though that exposure was for such a short period of time.

At respondents' request, Dr. Borkowski examined the applicant on August 26, 2003, and submitted a written report the next day. He noted that prior to working for the employer the applicant had worked in a quarry were he did some heavy lifting, as a beverage handler where he performed manual loading as well as forklift duties, in metal fabrication where he performed material handling duties, as a welder, and as a glazier. The applicant denied any prior hand or wrist problems. Dr. Borkowski diagnosed "possible carpal tunnel syndrome, not work-related." He emphasized the brief period of work exposure with the employer, and that there was no traumatic incident. He opined that for carpal tunnel syndrome to develop on an occupational basis there must be years of exposure. He also found it significant that even though the applicant is right-hand dominant, the EMG study showed a more abnormal latency at the left wrist. Finally, he questioned whether or not the applicant actually had carpal tunnel syndrome. Specifically, he indicated that his own testing revealed normal sensation in all the applicant's fingers, which he deemed to be contrary to the EMG study and the applicant's complaints. He recommended against carpal tunnel surgery and suggested a trial of injections. He opined that there was no relationship between the applicant's symptoms and his employment with the employer.

One of the applicant's co-workers also testified, and he indicated that the applicant complained about hand pain from his first day on the job. He testified that the applicant had a hard time wheeling and dumping wheelbarrows, and another worker had to take over that task from him on that first day. He further testified that within the first couple days the applicant told him he was taking pain killers, and mentioned that he had obtained pain killers in prison. The co-worker indicated that he did not believe the applicant would come back to work his second day.

The co-worker's testimony was credible. Given that testimony, together with Dr. Borkowski's medical opinion, the credible inference is that the applicant's bilateral hand and wrist problems were not causally related to his work exposure with the employer. While the commission does not agree with Dr. Borkowski that there must be "years of exposure" in order for carpal tunnel syndrome to develop, in the applicant's case there was effectively no exposure prior to the manifestation of symptoms. He testified that his symptoms appeared after three or four days of work, but this testimony was credibly rebutted by the co-worker, who indicated that the symptoms were present from the applicant's first day on the job. In fact, the applicant had to be relieved that day from the task of wheeling and dumping wheelbarrows of cement mix. Dr. Borkowski's skepticism concerning the diagnosis of bilateral carpal tunnel syndrome could perhaps have been effectively countered by submission of the operative reports, but they were not submitted. Dr. Weber's diagnosis is based on his understanding that the applicant's symptoms appeared "within a few days of the start of the job," which if true would be difficult enough to accept as an explanation for bilateral carpal tunnel syndrome. However, the credible evidence is that the applicant's symptoms manifested themselves on the first day of his job. The evidence leaves the commission with a legitimate doubt that the applicant developed bilateral carpal tunnel syndrome as a result of his work exposure with the employer.

NOW, THEREFORE, this

ORDER

The application is dismissed.

Dated and mailed March 15, 2006
daubepa . wpr : 185 : 8 ND § 3.4   ND § 8.28

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner


cc:
Attorney Brian D. Hamill
Attorney Randall Skiles


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