P O BOX 8126, MADISON, WI 53708-8126 (608/266-9850)




Claim No. 2008-014469

The applicant submitted a petition for commission review alleging error in the administrative law judge's Findings and Order issued in this matter on February 9, 2009. Seek Career/Staffing, Inc., and United Wisconsin (respondents) submitted an answer to the petition and briefs were submitted by the parties. At issue are whether or not the applicant sustained an occupational injury arising out of and in the course of her employment with the employer, with a date of injury on/or about September 1, 2007; and if so, what are the nature and extent of disability and liability for medical expense.

The commission has carefully reviewed the entire record in this matter and hereby affirms the administrative law judge's Findings and Order, as herewith modified.

The commission makes the following:


The applicant, whose birth date is April 13, 1957, began her temporary help employment with the employer's client, DIC Imaging, in January 2007. DIC manufactures ink toner, and after briefly putting together boxes for DIC, the applicant began working on a production line that fills and packages 64-ounce (half-gallon) bottles of toner. Her work involved manually lifting the bottles of toner out of boxes to inspect them, and wiping excess toner off the bottles before placing them back into the box. The bottles weighed approximately three pounds apiece. Respondents' Exhibit 6 is a DIC production record revealing that on a typical work day in March through July of 2007, between 1,800 and 2,000 bottles of toner would be produced (8 bottles per box and 120 bottles per skid). The applicant would also seal tape the boxes after they were ready. She worked a 10-hour shift four days per week, with two 30-minute breaks and one 15-minute break each day.

On an occasional basis, the applicant would be assigned to a line that produced trays of toner, usually weighing 6.6 pounds apiece. On an even more occasional basis, she worked with trays weighing three pounds apiece. The applicant would seal the filled trays, lift them, place them into boxes, and put the boxes on a skid.

In August or September of 2007, DIC "added a lift" to the production line, although exactly what was lifted is not made clear in the record. At the same time, the employer changed the work procedure so that instead of every bottle being inspected and cleaned, this was only done for one bottle per box. If the bottle that was inspected was dirty, other bottles in the box might also be cleaned. This reduced the number of bottles the applicant actually handled.

The applicant testified that she first experienced soreness in both elbows in June or July of 2007, and that she told her DIC supervisor about it in August or September of 2007. The pain progressed, particularly in the right elbow, and she finally went to see a physician on January 30, 2008. That physician was Dr. Shannon Muderlak, who diagnosed bilateral epicondylitis. Dr. Muderlak took a history of the work exposure which is not entirely accurate, because it indicates the applicant had no change in her job duties over the previous 12 months. Conservative treatment was prescribed together with a 5-pound lifting/pushing/pulling limitation. The employer accommodated this restriction with an office job. DIC could no longer continue the job as of June 1, 2008, but offered the applicant the same type of job at a different facility 13 miles from her home. She declined because she did not want to commute that far. She also obtained a restriction from one of her physicians, Dr. Paul Mankus, limiting her driving to 15 minutes at a time.

On February 4, 2008, the applicant began treatment with Dr. Brian McCarty, an orthopedic surgeon. Dr. McCarty diagnosed right elbow medial epicondylitis and ordered a right elbow MRI that was performed on March 25, 2008. The radiologist read this as showing a partial, 5-millimeter tear of the common flexor tendon felt to be acute or subacute with associated edema. Also seen was a smaller, more focal partial tear of the common extensor tendon. Dr. McCarty reviewed the MRI and opined that it showed: "...a high-grade partial tearing of the flexor pronator origin, with fluid extending from the tear subcutaneously, indicating an acute or subacute injury." Dr. McCarty diagnosed a high-grade partial tear of the right elbow flexor pronator origin, and recommended surgical repair because conservative treatment, including injections, had not relieved the applicant's symptoms. Surgery has not taken place due to respondents' resistance to the claim.

At respondents' request, Dr. Paul Goodman examined the applicant on May 12, 2008. In his report dated May 16, 2008, Dr. Goodman also diagnosed right medial epicondylitis, but opined that this was a manifestation of a progressively deteriorating disorder of the tendon structures unrelated to the applicant's work activities. He viewed a video of the work duties and opined that although they were repetitive, there was no exposure to strenuous forces or awkward postures. He attributed the applicant's degenerative elbow condition to aging exacerbated by her pack-a-day smoking habit. Regarding the MRI, he wrote:

"MRI scan reports and common medical lingo frequently utilize the words 'tear' when describing the disruption of tissues and structures found on diagnostic imaging or at times of surgery. However, for the most part such language is misleading, manipulating the mind of the reader to understand that some sort of traumatic even is responsible for the 'tear' or 'torn' rotator cuff, event in the absence of any objective evidence of trauma having occurred. In the examinee's case, although her diagnostic reports indicate such language, I find it better to use the word 'disruption' which avoids a traumatic connotation. Over time, tendon structures deteriorate, breakdown, and become disrupted as a usual and normal consequence of the aging process. This is what has occurred in the examinee's case. No injury per se is medically determined."

Dr. Goodman also noted the applicant had assisted her fianc in his carpet installation business, and noted that such work involves "high forces and sometimes awkward postures." He indicated that assuming the applicant did perform carpet installation work; it would be much more likely that her elbow condition was related to that activity rather than to her work at DIC. He recommended against surgery.

In a short, responsive letter dated June 2, 2008, Dr. McCarty indicated he disagreed with Dr. Goodman:

"She had an IME, in which Dr. Goodman opined that her issues were not work related. I don't agree with that, as she has, what appears to be, an acute tear on her MRI scan. This was attributed to typical degeneration with age, but this is certainly not something that we see in most patients at her age, thereby making that opinion questionable."

Dr. Goodman submitted a supplemental report dated October 23, 2008, based on an updated medical records review. This report reiterates his opinions from his first report, but emphasizes that there is no record of an acute injury, rather "...a chronic process of deterioration with the ultimate result of a gradual weakening and disruption of fibers." He opines that the applicant is in the age group (45-54 years of age) where the prevalence of degenerative conditions such as tendinosis, manifested by a variety of tendinopathies such as epicondylitis, begin to interfere with work activities.

Dr. McCarty significantly overstated the applicant's work exposure. In his WKC-16-B he wrote:

"Work exposure at DIC Imaging and Packaging from January 2007 to February of 2008. Patient's initial job consisted of lifting approx. 2,560 1 gal jugs of toner out of boxes, lifting and inverting them in order to hand-clean them and then returning them to their boxes continuously throughout her 10 hour work shift. Her job duties also required her to (1) to prepare pallets for shrink wrapping which involved applying corner guards and topguards to the pallets and (1) taking machines apart to clear parts which involved the lifting and maneuvering of heavy machine parts by hand. After patient began experiencing pain symptoms she was placed on a different line that involved placing 6 pd. trays into a filling machine, opening seals and placing same on the trays which required hand rubbing seals in rotational patters until completely sealed."

The toner came in half-gallon not gallon bottles, and the applicant did not lift nearly the number of bottles Dr. McCarty understood her to have lifted. There were a significant number of work days in which production was under 10 pallets or 1,200 bottles. The applicant frequently worked on 14-17 pallets of bottles per day, which totaled 1,680 to 2,040 bottles. The highest recorded production day occurred on March 14, 2007, and involved 18 pallets or 2,160 bottles. Dr. McCarty does not say anything about the change in duties that significantly reduced the number of bottles inspected. One of the applicant's supervisors gave uncontroverted testimony that the applicant did not take apart machinery, but Dr. McCarty was apparently told that her job involved lifting and maneuvering heavy machine parts.

While Dr. McCarty ultimately diagnosed an acute tear of a right elbow tendon, there was no work incident of acute, traumatic injury. The applicant described the onset of her symptoms as gradual, and beginning no later than September of 2007 (per Dr. Muderlak's clinic note of January 30, 2008). Dr. Goodman credibly opined that the injury was not acute.

The applicant has the burden of proof in a worker's compensation case, and when a worker's physician bases his/her opinion on an inaccurate history of events, that opinion cannot credibly carry the worker's evidentiary burden. Lewellyn v. ILHR Dept., 38 Wis. 2d 43, 52, 155 N.W.2d 678 (1968); Van Valin v. Industrial Commission, 15 Wis. 2d 362, 364, 112 N.W.2d 920 (1962); Pressed Steel Tank v. Industrial Commission, 255 Wis. 333, 335, 38 N.W.2d 354 (1949).

Accordingly, the applicant's failure to carry her burden of proof leaves the commission with no alternative other than to dismiss her claim.
Now, therefore, this:


The Findings and Order of the administrative law judge are modified to conform with the foregoing, and as modified are affirmed. The application for an occupational injury occurring on/or about September 1, 2007, is dismissed.

Dated and mailed September 8, 2009
romanch . wrr : 185 : 1 ND 8.23, 8.24. 

/s/ James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner


cc: Attorney Michael W. Fleming
Attorney Sean Spencer

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