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

CAROLE LEE, Applicant

FAMOUS FIXTURES, Employer

LUMBERMENS MUTUAL CASUALTY CO, Insurer

WORKER'S COMPENSATION DECISION
Claim No. 96000857

An administrative law judge (ALJ) for the Worker's Compensation Division of the Department of Workforce Development (Department of Industry, Labor and Human Relations prior to July 1, 1996) 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 July 2, 1997
leeca.wsd : 101 : 7  § 5.6

Pamela I. Anderson, Chairman

David B. Falstad, Commissioner

MEMORANDUM OPINION

The ALJ found for the applicant based on the opinion of her treating doctor, Mark C. Moore, M.D. Accordingly, the ALJ awarded the payment of temporary disability to the date of hearing. The employer and the insurer (collectively, the respondent) appeal, contending that Dr. Lay's opinion that her work for the employer caused only a short period of temporary disability is more credible. Indeed, the respondent asserts that Dr. Moore's opinions "mirrors" Dr. Lay's so that even Dr. Moore's opinion does not support the ALJ's award. The respondent contends the doctors agree that the applicant had an underlying condition and that Dr. Moore's opinion fails to state whether the applicant's continued complaints were related to work for the employer, or were due to the underlying condition.

The commission must disagree with this assertion. On the face of his practitioner's report, Dr. Moore states that the work exposure was at least a material contributory factor in the progression of the applicant's condition, which he described as bilateral carpal tunnel syndrome and ulnar neuropathy. This statement is sufficient to support the ALJ's award. True, Dr. Moore agreed that exposure at Aeratex may also have contributed to the applicant's condition and, true, the applicant has an underlying condition that preexisted her employment with the employer. However, that is the very nature of occupational disease. Liability may exist even when the injury arises from work for several employers over many years, and even when work for the final employer is only a material contributory factor in the progression of the condition.

It is also true that Dr. Moore did not expressly refute Dr. Lay's opinion that work exposure caused only temporary symptoms. On the other hand, Dr. Moore did opine that the conditions (not just the symptoms) of bilateral carpal tunnel syndrome and ulnar neuropathy were caused by an appreciable period of workplace exposure with the employer. He opined in December 1995 that it was still too early to tell whether the work exposure would leave the applicant with permanent disability. The most reasonable reading of Dr. Moore's practitioner's report and attached treatment note is that, given the timing of the applicant's symptoms, the EMG results, and her continuing complaints, work for the employer caused a progression of the applicant's carpal tunnel and ulnar neuropathy conditions as well as the applicant's continuing disability therefrom.

Beyond the sufficiency of Dr. Moore's report to support the ALJ's award, the next question is which doctor, Dr. Moore or Dr. Lay, gives the more credible opinion. Both doctors agree that the type of work the applicant did was the type of repetitive hand motion that materially contributes to the progression of carpal tunnel syndrome. The issue is whether the work caused only short term symptom aggravation, as Dr. Lay opined, or longer term disability, as Dr. Moore opined.

Like the ALJ, the commission finds Dr. Moore's opinion more credible. The EMG showed carpal tunnel syndrome in October 1995, only a few days after the applicant was laid off. Dr. Moore noted the applicant showed a positive Tinel's sign in November 1995. (1) The applicant testified her symptoms got much worse during her employment with the employer than they had been in the prior employment, a contention that is supported by reviewing the medical notes for the prior complaints in 1991 and 1992. It may be that the symptoms subsided when she discontinued repetitive hand motion following her layoff, but that does not mean she suffered only a temporary worsening of her condition from employment with the employer.

The commission cannot accept Dr. Lay's conclusion that the applicant reached a healing plateau as of November 8, 1995. For one thing, Dr. Lay admits she was not truly asymptomatic on that date, but rather that she had no objective signs or symptoms were present. And in fact she had more than subjective complaints; already on October 30, 1995, the EMG showed carpal tunnel syndrome (a fact noted by Ms. Yentz in her November 8 note.) Moreover, Ms. Yentz never stated the applicant was asymptomatic in her note on which Dr. Lay relies (although Dr. Moore did note the applicant did not have symptoms on November 29).

The commission is also troubled by Dr. Lay's opinion regarding the October 30, 1995 EMG. At one point in his report he states that "despite [the applicant's] complaints of mild pain and numbness, . . . [EMG] findings failed to show evidence of denervation or any other permanent loss." Exhibit 1, page 14, response to question 5. Yet in his response to the very next question he bases permanent work restrictions on "ongoing progressive carpal tunnel neuropathy findings on EMG."

Perhaps one basis for rejecting treating doctor Moore's opinion might be if the applicant were exaggerating or lying about her symptoms and when they arose. The respondent points to the disputed testimony about whether the applicant told the human resources coordinator about her hand problems when she applied for full time work; the fact that the applicant did not go to the doctor until after she was laid off despite complaining of hand pain for several months; and some inconsistencies about the location of her hand and wrist pain was in 1992 and July 1995.

On the other hand, the ALJ found the applicant credible. While she may not have seen a doctor immediately, the applicant was uninsured and the EMG and other tests do show she has carpal tunnel syndrome; this is not something she made up. Further, the commission is not inclined to give much weight to the applicant's inconsistency as to the location of short-term pain occurring four years before the hearing. The applicant's response about the location of her wrist pain in July 1995 was in part due to the form of the questioning on cross-examination. Transcript pages 47 to 49.

Finally, the respondent raises a legal argument against paying temporary disability based on GTC Auto Parts v. LIRC, 184 Wis. 2d 450, 461 (1994), where the court stated that the commission does not have the authority to order an employer to pay an injured worker temporary disability benefits for the period after the employe's medical condition has stabilized and before the applicant undergoes surgery. In this case, even treating doctor Moore opined that by the spring of 1996, the applicant's condition was stable and getting no worse. Yet the ALJ ordered temporary total disability to the date of the hearing in September 1996.

The respondent's argument on this point, while seemingly persuasive, is flawed. First, in GTC Auto Parts, the applicant refused to have the recommended operation, yet the ALJ required the employer to pay temporary disability indefinitely in an attempt to force the employer to pay for retraining as an alternative to surgery. In this case, of course, it is the respondent who refuses to pay for the neurologic work up and carpal tunnel surgery.

Moreover, in the case cited by the court in GTC Auto Parts as support for the proposition that the commission cannot order temporary disability after a condition is stable and before surgery, Larsen Co. v. Industrial Commission, 9 Wis. 2d 386 (1960), the facts were much different than here. In Larsen Co., the treating doctor had plateaued the applicant with permanent disability and no recommendation for surgery in February 1955; surgery was first recommended in April 1956. The court held the commission's predecessor could not order temporary disability in the interim because the applicant had not been submitting to treatment and convalescing. Larsen Co., at 9 Wis. 2d 392. In this case, of course, the applicant would have been treating had the respondent paid for it. Dr. Moore, after all, was recommending a further neurologic work-up and surgery as early as November 1995, but the respondent refused to pay for either.

Stated another way, while an employer generally is no longer liable for temporary disability once an injured worker has recovered as much as the permanent character of his injuries permit, this assumes the recovery is aided by both treatment and convalescence. Larsen, supra. The commission declines to hold that an employer may refuse to pay for treatment for a compensable work injury, and then simply point to an applicant's unchanging condition after that refusal as an endpoint of healing.

cc: ATTORNEY ANDREW J QUARTARO
PETERSON JOHNSON & MURRAY SC

ATTORNEY GREGORY MEYER
STAFFORD & NEAL SC

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Footnotes:

(1)( Back ) While Ms. Yentz noted negative Tinel's sign on October 24, I'd not put too much weight in this as Yentz is a physician's assistant, not a physician, and after all, the EMG was positive for carpal tunnel only a week later.