WENDY L WOLFF, Applicant

SEMLING MENKE CO INC, Employer

EMPLOYERS INSURANCE CO OF WAUSAU, 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.

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

Dated and mailed March 28, 2006
wolffwe . wsd : 175 : 8    ND § 3.4

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

Employers Insurance of Wausau which was on the risk for the date of injury in July 2002 contends the administrative law judge erred in determining the applicant suffered a work-related bilateral carpal tunnel syndrome with a date of injury of July 31, 2002, resulting in temporary total disability and need for medical treatment. Employers Insurance of Wausau states the administrative law judge's order contravenes the court of appeals holding in Virginia Surety Co., Inc. v. LIRC, 258 Wis. 2d 665 (Ct. of App. 2002). Employers Insurance of Wausau contends that under the rule announced by the court of appeals in Virginia Surety, there cannot be a date of disability unless there is a disability in evidence: i.e., an inability to work and resulting non-compensation. Employers Insurance of Wausau states there was no evidence of disability on July 31, 2002, due to the applicant's work-related condition. Employers Insurance of Wausau points to the fact the applicant left work on July 31, 2002, due to her symptoms, which had not ripened into a disabling condition. Employers Insurance of Wausau also points to the fact the applicant's own testimony was that she only missed work on July 31, 2002, because of the scheduled appointment and she would have worked the entire day on July 31, 2003, if she had not had the appointment with her physician.

The applicant credibly testified her wrist began bothering her due to her work for the employer in the winter 2001 in January 2002. The applicant testified she began feeling tingling sensations, numbness and sharp pains in the muscles in the late winter towards spring of 2002. The applicant first sought treatment on June 19, 2002, after work.

The applicant first missed work time when she sought treatment for ongoing wrist problems and symptoms on the afternoon of July 31, 2002. Between June 19, 2002 and July 31, 2002, the applicant treated her wrists with ice and heat alternately, and took over-the-counter pain medications. Dr. Priebe, the applicant's treating physician, did not take the applicant off of work subsequent to July 31, 2002, and returned her to work with no limitations, but did give the applicant wrist braces to wear. Subsequently, on August 1, 2002, Dr. Priebe had the applicant undergo an EMG test and the applicant again missed work, and subsequently underwent physical therapy for ongoing wrist problems.

The applicant testified she was in a lot of pain as of July 31, 2002, with her ongoing wrist symptoms, and that she would have to stop working probably every hour or so, and put ice on her wrist but she was able to do her job. The applicant admitted that despite her increasing symptoms through June 19, 2002, and thereafter she did not take any time off of work despite the pain because she was short on vacation time, and she was needed at work. The applicant testified that her continuing typing duties caused her wrist pain prior to July 31, 2002, and her hands would go numb, she had extreme loss of strength in her hands and her hands would swell up. The applicant explained that she was able to do 40 to 45 words per minute previously, and at the time she saw Dr. Priebe on July 31, 2002, her typing speed was slower. The applicant admitted that from June 19, 2002 until her surgery in January 2003, no physician had told her to stay off of work or gave her restrictions, as a result of the problems with her hands.

The commission has faced a similar situation in a recent decision in Murphy v. Badger Mining Corp., Comm. Dec. dated January 26, 2006. In the Murphy case, the applicant suffered from silicosis caused by his employment, and the issue was whether the applicant's date of injury due to his silicosis was his first lost time from work for a bronchoscopy on December 23, 1996, or whether it was his last day of work with the employer on September 7, 2001. The commission noted in the Murphy case the applicant admitted in 1996 he had experienced some shortness of breath upon exertion, although it did not interfere with his ability to work. In the Murphy case, the applicant's treating physician did not assess any physical restrictions, as a result of his December 1996 bronchoscopy, but he did begin medication and regular monitoring of the applicant's condition.

The commission noted in the Murphy case, that in Virginia Surety, the applicant had received all of his medical treatment including a bronchoscopy at the direction of the employer or a follow-up with the employer's physicians. The commission reasoned that this is significantly different from the applicant, who as in the Murphy case saw his physician because of his own concern over an abnormal x-ray, and chose to go to his own physician, take a day of vacation, and was not directed to do so by the employer. Similarly, in our current case, the applicant sought treatment with Dr. Priebe on July 31, 2002, on her own accord because of her worsening symptoms, and she was not directed to see Dr. Priebe by the employer.

In the Murphy case, the commission found the date of the occupational disease was the last day of work because the evidence did not demonstrate the applicant's occupational disease affected his physical ability to work in 1996, or prior to his last day of work. However, in our current case, the evidence does demonstrate the applicant's occupational disease affected her physical ability to work as of July 31, 2002, when she sought treatment with Dr. Priebe. The applicant testified that due to the numbness and pain in her wrists, her ability to type had slowed down, and she needed to take numerous breaks to ice her wrists, which were slowing down her production.

Therefore, this is not a case such as in Virginia Surety when the applicant was directed to seek treatment by the employer. In addition, this is not a case like the Murphy decision where there was no evidence the employee's occupational silicosis had an effect on his ability to work prior to his last day of work with the employer. In our current case, the applicant testified that her worsening symptoms as of July 31, 2002, were severe enough to impair her ability to work. Therefore, the reasoning applied in the Virginia Surety case does not control in this case. The administrative law judge appropriately determined by the July 31, 2002, treatment with Dr. Priebe, and lost time from work due to her occupation injury, it was clear the applicant's condition had developed into a disabling condition. Therefore, Employers Insurance of Wausau, which was on the risk on July 31, 2002, was liable for additional temporary total disability benefits, and reasonable and necessary treatment expense.

cc:
Attorney Mark Parman
Attorney Danielle McCollister

Appealed to Circuit Court.  Affirmed, March 12, 2007.

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