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

KIMBERLY L FOGEL, Applicant

PERKINS RESTAURANT & BAKERY, Employer

ZURICH AMERICAN INSURANCE CO, Insurer
c/o MARYLAND INSURANCE CO

WORKER'S COMPENSATION DECISION
Claim No. 2005-009165


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 March 30, 2006
fogelki . wsd : 101 : 8  ND § 3.4

James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner


MEMORANDUM OPINION

The applicant was born in 1972. She began working for the named employer on May 3, 2004. Prior to starting this job, she worked as a waitress at Embers.

The applicant worked 35 to 40 hours a week for the employer. She estimated that she spent 60 percent of her time serving meals, and 35 percent bussing tables. She acted as a cashier and hostess in a limited fashion.

The applicant estimated the food trays were three-feet in diameter and weighed 25 pounds when loaded with food. She testified she worked 12-hour shifts on occasion, and that the weight bothered her hands.

The applicant testified that she began experiencing problems with her both hands in early May 2004. In addition to numbness upon arising in the morning, she also had numbness and trouble carrying the large trays at work, especially for longer shifts. She eventually saw her doctor.

The employer's assistant manager testified. She stated the applicant had only worked for the employer for 29.69 hours from the time she started her employment on May 3, 2004 to May 16, 2004. She also testified the applicant did not report an injury until July.

The applicant relies on the expert medical opinion of her treating surgeon, Eugene J. Carlisle, M.D. Exhibits E and F. He report that "waitress work" was work exposure to which the applicant attributed her condition. The doctor incorporates by reference his medical records, which include a diagnosis of carpal tunnel syndrome. In particular, a note dated January 6, 2005 that recited that her injury date was May 4, 2004, and that her condition was work-related. He noted residual symptoms including occasional aching in her hands at night, and stiffness in her hands and wrists. Dr. Carlisle rated the applicant's disability at 2 percent at each wrist. He opined she could return to work in light duty as of October 12, 2004, but could never return to work as a waitress.

The employer and its insurer (collectively, the respondent) retained Stephen Barron, M.D., as their examiner. He concluded that the applicant's work did not cause her carpal tunnel condition. Noting that she only worked at Perkins for a month, he opined that her work was of insufficient magnitude, duration, and frequency to cause carpal tunnel syndrome. On this point, the doctor opined that it typically takes more than a month of precipitating factors to cause the development of carpal tunnel syndrome.

Dr. Barron did acknowledge that the applicant's employment did require repetitive hand activity. However, he stated that there is no proof in the literature that repetitive hand activity causes carpal tunnel condition, noting an article in the Journal of Neurology indicating that the incidence of carpal tunnel syndrome is no higher among secretarial computer users than the general population. He attached the supporting Journal article.

The ALJ noted that while the applicant had prior hand complaints, it was not until she started working with the employer that her complaints of bilateral hand numbness interfered with her work. She credited the opinion of the applicant's treating doctor, Carlisle, and found a compensable injury.

On appeal, the respondent points to several factors it says lead to legitimate doubt: the applicant's prior complaints, the lack of a reference to work or work related complaints in the treatment notes beginning with the May 25, 2004 treatment note, the reference instead to the fishing incident pulling up the anchor in the May 25, 2004 note, the contradiction about when the injury was reported, the testimony of the employer's manager that there were no other claims by waitresses, and that the applicant only worked for the employer about 30 hours in the eight days before she noted symptoms in mid-May 2004.

While the applicant only worked for the employer for a few days before noticing symptoms, this is an occupational disease. The exposure does not need to have been entirely with one employer to make that employer liable. Rather, the liable employer is determined by the point when the condition becomes disabling. Indeed, an employee who is suffering from an occupational disease, but who does not lose any time until he begins subsequent employment that contributes to the disease, has a date of injury with the subsequent employer even if the period of subsequent employment is quite brief. North River Ins. Co. v. Manpower Temp. Servs., 212 Wis. 2d 63 (Ct. App. 1997).

Here the applicant's doctor said that waitressing caused her carpal tunnel syndrome. Thus, while the applicant had worked with at least one other employer as a waitress, and while the applicant worked for the named employer for a relatively brief period of time, the applicant's disability due to the symptoms from the bilateral carpal tunnel condition did not arise until the applicant began work with the employer.

Further, although applicant did not herself associate her problems with waitressing work, the medical notes establish that she did experience wrist pain at work, especially after long days. Dr. Barron did not opine that the applicant's condition was caused by the fishing incident, or that it was less likely to be occupational based on that incident. Dr. Barron acknowledged that the applicant's work did involve repetitive hand activity, but then concluded it was not causal based on study done on repetitive hand motion by word processing operators. However, unlike word processors, the applicant's hand activity required carrying weights to perform her waitress/bussing work.

cc:
Attorney Peter T. Waltz
Attorney Robert W. Connell



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