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


BILLIE DOBBINS, Applicant

COUNTY OF WINNEBAGO SHERIFF, Employer

COUNTY OF WINNEBAGO, Insurer

WORKER'S COMPENSATION DECISION
Claim No. 93021350


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 originally issued a decision in this matter on February 29, 1996. By order dated October 10, 1996, the Circuit Court of Winnebago County set aside the commission's decision and remanded the case to the commission. Based on the applicable law, records and evidence in this case, and pursuant to the Court's remand order, the commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The applicant began employment with the respondent employer in December of 1981 as a corrections officer. The applicant passed a physical examination to obtain her position. The applicant was also required to pass annual physical training programs involving, among other things, prisoner restraint techniques, baton training, and handcuff training. She was also required to participate in firearms training, last doing so in March of 1990.

As a child, applicant experienced strange feelings in her shoulder blades which made her feel like she had to move them. Starting in 1982, applicant began treating with a Dr. Haffar for headaches. In July of 1989 applicant began treatment with a Dr. Basiliere for hyperventilation. On August 15, 1989, applicant began treatment with a chiropractor, Dr. Belville, for headaches and neck aches. In September of 1990, Dr. Belville noted applicant's complaints of scapular pain, bilateral shoulder soreness and tenderness, pain in the right trapezius, and neck pain. Dr. Belville's treatment included ultrasound, neck manipulation, and back massaging.

On referral, the applicant was seen by a Dr. Owens on August 21, 1990. Dr. Owens noted applicant's complaints of headaches, neck pain, pain in the trapezius bilaterally, and scapular pain worse on the right than the left. On examination, Dr. Owens noted trigger points in the upper trapezius, worse on the right and scapular muscles. Pain was noted with extremes of external rotation of the right shoulder. Dr. Owens' assessment was of persistent neck and scapular pain and that applicant had developed a feboral myalgia syndrome, not yet generalized. Dr. Owens referred applicant to a rheumatology teaching nurse at the Fox Valley Arthritis Treatment Center.

On September 5, 1990, the Arthritis Treatment Center nurse recorded applicant's complaints of, among other things, severe pain in her neck, shoulders, and shoulder blades, and a burning sensation in the shoulder blades. On September 10, 1990, Dr. Owens noted multiple trigger points bilaterally in the trapezius and scapular muscles. On October 2, 1990, the Arthritis Treatment Center nurse again noted applicant's complaints of neck and shoulder pain, worse on the right. In a telephone call to Dr. Owens on October 12, 1990, applicant noted that she had experienced swelling in the shoulders near the neck earlier in the week which had since resolved. On October 15, 1990, applicant did not perform physical training, which included lifting an air pack over her head, because she was beginning occupational therapy that evening to treat her fibromyalgia. At the October 15, occupational therapy session applicant reported pain in the right posterior neck area with shoulder flexion, pain coming from the upper trapezius and the middle trapezius and also the anterior and posterior middle deltoid muscle.

On October 18, 1990, applicant was working as a matron specialist which involved mainly clerical duties, acting as a court officer, and assisting in transporting female inmates and mental patients. On that date, the applicant and her supervisor, Officer Rasmussen, were transporting a mentally ill female patient from a hospital to the Winnebago County Courthouse. The patient, who was approximately 5' 10" and weighed about 180 pounds, attempted to exit the moving vehicle. After stopping the vehicle, the applicant and her supervisor attempted to restrain the patient who started kicking at them and continued to try to exit the vehicle. The applicant and Officer Rasmussen were kicked in the process. At the hearing applicant testified that in the process she grabbed the patient's leg with her hand or hands and her arms were kind of going in and out with the patient's leg as the patient continued to kick. Eventually, the applicant and her supervisor got the patient back in the vehicle. At that time, applicant did not perceive herself to be hurt, other than perhaps a bit of soreness in her left arm. Applicant felt no physical problems, pain, or disability in her shoulder. Applicant did not report a worker's compensation injury to the employer at that time.

Applicant filled out a supplemental report to her supervisor's original report on or about October 19, 1990, regarding the above incident. In that report, the applicant indicated that the patient's "legs were sticking out of the door. Officer Rasmussen attempted to push her back in and Officer Dobbins assisted, Officer Rasmussen and I were kicked several times." The report made no mention of any injury to the applicant. Applicant attended occupational therapy sessions on October 22, 29, and November 5, for myofascial pain release techniques to decrease pain in her neck area, upper and lower back, and to increase motion in those areas. Myofascial release was also performed over the upper trapezius bilaterally.

On November 9, 1990, the respondent required the applicant to see its doctor, Dr. Capasso, because she was unable to participate in the scheduled physical training. Dr. Capasso found that applicant was suffering from a chronic rheumatological soft tissue disorder, involving the neck and shoulder girdle region. Dr. Capasso, after noting applicant's disorder and restricted level of physical activity in recent years, found her unfit to pursue unrestricted placement as a corrections officer. Dr. Capasso found that applicant's existing therapeutic treatment under the direction of a rheumatologist was appropriate. Dr. Capasso indicated that applicant would need assistance with respect to repetitive tasks at or above shoulder height level, or tasks requiring static posturing of the neck and shoulders. Dr. Capasso did not indicate at that time any evidence that applicant's shoulder blade was winging out. Applicant did not mention the October 18, 1990, incident to Dr. Capasso nor any other acute incident occurring to her.

Applicant attended occupational therapy on November 5 for myofascial pain release techniques. During an occupational therapy session on November 12, 1990, the therapist noted winging of applicant's right shoulder and that applicant reported that the winging had been noticed by "Dr. Kilpowso" the prior week. Applicant underwent a physical capacity evaluation on November 14, 1990. At that time, applicant reported pain in the right upper trapezius, the middle trapezius, and the entire scapular area. The physical therapist conducting the evaluation noted pronounced right scapular winging with range of motion evaluation. Physical limitations were placed on applicant's activity with respect to pushing, pulling, lifting, reaching, and carrying, particularly with respect to her right arm. In a treatment note of November 21, 1990, Dr. Owens noted the winging, and that applicant indicated that she had discussed the condition with Dr. Capasso. On December 7, 1990, applicant's employment was suspended because she was unable to perform the full range of her job duties. In December of 1990, Dr. Owens referred applicant to an orthopedic physician, Dr. Boyle.

During applicant's January 2, 1991, evaluation by Dr. Boyle, applicant indicated that she had experienced discomfort of the right shoulder for the last three or four months and a deformity, winging of the right scapula, over the last two months. Dr. Boyle noted that applicant did not recall any prior injury to the right shoulder. Dr. Boyle's diagnosis was of winging of the right scapula, probably due to a paralysis or palsy of the long thoracic nerve. Dr. Boyle was unsure of how the winging occurred without a history of injury or any obvious cause. Dr. Boyle scheduled an EMG which was performed on January 9, 1991. On January 16, 1991, Dr. Boyle noted that the EMG was normal showing no abnormalities. Applicant was advised to rest her arm and avoid overhead activities.

Applicant reported to Dr. Owens on February 22, 1991, that her shoulder felt "out of place." Applicant continued to treat with Dr. Owens in 1991 for her fibromyalgia. Applicant continued to experience, among other things, right scapular winging, trigger points in the scapular and trapezius areas, and right shoulder pain.

On March 5, 1991, the applicant filed an equal rights complaint with the Department of Industry, Labor and Human Relations' Equal Rights Division. In her complaint the applicant swore, to the best of her knowledge and belief, that she had been diagnosed with fibrositis by Dr. Owens in August of 1990 and, separate from that disease, developed severe winging of her right shoulder blade in October of 1990. The applicant further stated that she could not work with prisoners, participate in physical training, or work in the control module because of her fibrositis and shoulder blade, but could perform her clerical duties. The applicant further stated:

Since I was not hurt at work, I was not allowed to stay at the Sheriff's Dept. and work on light duty, in fact I was not even allowed to stay and work at my own job, which my doctors said I was capable of doing.

Employees that are injured at work, that are eligible for Workman's Compensation, are allowed to stay at the Dept. and work light duty.

Moreover, at the time the applicant completed the March 5, 1991, complaint she had made the association, in her own mind, between the October 18, 1990, incident and her scapular winging. She did not notify the employer that she had a work-related injury on the advice of counsel. (1)

On April 19, 1991, Dr. Boyle referred applicant to the University of Wisconsin Hospital and Clinics for evaluation, where she was seen by Dr. Orwin, an orthopedic surgeon. On May 31, 1991, Dr. Orwin recorded that applicant had first noticed winging of her right scapula in October of 1990, approximately one week after she had an encounter with a prisoner at which time she was forced to push a prisoner into a car. Dr. Orwin's impression was that the applicant was suffering from dysfunction of her serratus anterior muscle. Dr. Orwin noted that the previous EMG study was read as normal, but ordered a repeat EMG suspecting involvement of the long thoracic nerve. An EMG performed on June 7, 1991, showed some increase in polyphasia and reduced recruitment of the motor units in the right serratus anterior. The impression was of incomplete right long thoracic neuropathy.

Applicant returned to work for the employer in June of 1991 as a clerical worker. In a July 26, 1991, treatment note Dr. Owens noted applicant's complaints of neck and right arm pain and right arm weakness. On examination Dr. Owens noted marked tenderness and spasm in the cervical and upper trapezius muscles. The right shoulder was painful with all movements. Dr. Owens assessed fibromyalgia with flare, worse from the prolonged neck flexion required in her clerical work. On September 6, 1991, Dr. Orwin noted that applicant's symptoms persisted, reaffirmed his impression of incomplete long thoracic nerve palsy, and advised applicant to return in January of 1992.

A third EMG was performed on January 6, 1992, which found no electrodiagnostic evidence of long thoracic nerve injury or history of long thoracic nerve injury. In a January 24, 1992, treatment note Dr. Orwin noted the normal EMG. On examination applicant displayed scapular winging with pain, particularly in the right upper trapezius. Dr. Orwin indicated that the cause of the scapular winging was unknown. Dr. Orwin ordered an MRI of the right shoulder and upper thoracic area to rule out any extrinsic causes of the scapular winging. Applicant was referred to the neurology department for examination. An MRI performed on February 2, 1992, was normal disclosing no abnormal masses or signal intensity involving the right shoulder or periscapular region.

Dr. Schutta, a neurologist, examined applicant on February 6, 1992. Dr. Schutta indicated that applicant had been in "perfectly good health until October 1992 (sic) when she noticed winging of her scapula. She first noticed it about a day or two after she struggled with a very violent person whom she was arresting." Dr. Schutta noted the inconsistent EMGs. Dr. Schutta felt that an EMG of the serratus lateralis was not an easy thing to do and opined that the applicant did somehow damage the long thoracic nerve. Dr. Schutta ruled out avulsion of a tendon of the serratus lateralis as the cause of the problem because if such had occurred the applicant would have experienced quite a bit of pain, and applicant assured Dr. Schutta that she had no pain when she first noticed the condition. Dr. Schutta also ruled out a nerve lesion because such would have recovered unless completely torn and the two ends had not united. Dr. Schutta noted that the MRI had been completely normal. Dr. Schutta advised adoption of a "wait and see" and "hope for the best" attitude, noting that the winged scapula was a bit uncomfortable due to a little aching around applicant's shoulder.

On May 28, 1992, the applicant settled her equal rights complaint against the respondent employer for $1,700 and reinstatement of sick leave time. In doing so, applicant released all claims against the employer, except Workers Compensation. By letters dated June 13, 1992, the applicant's attorney notified the employer and Wausau Insurance Company that applicant was claiming a worker's compensation injury to the nerves in the right shoulder blade occurring on October 18, 1990.

On June 18, 1992, the applicant's husband called Dr. Owens and questioned whether she would be able to testify that working the swing shift for the employer contributed to the applicant's fibromyalgia. Dr. Owens indicated that she believed a swing shift schedule could contribute to applicant's symptoms but questioned how strong her testimony would be given the lack of documentation that it was discussed in any detail.

In an examination note of June 26, 1992, Dr. Orwin indicated that applicant's symptoms had not changed over the last six months. Dr. Orwin remained of the opinion that applicant's condition was due to long thoracic nerve involvement affecting the serratus anterior muscle. On evaluation Dr. Orwin noted soreness through the upper trapezius. Surgical intervention was noted as a possible course of treatment.

Applicant was referred to Dr. Schultz whom she first saw on November 11, 1992. Dr. Schultz recorded that applicant while "working as a police officer in October of 1990 was attempting to restrain a prisoner, and there was a lot of kicking involved and she noticed immediate onset of weakness after having restrained the prisoner." Dr. Schultz' impressions were: 1. Permanent long thoracic nerve injury, unusual given that it was most likely a stretch injury and would be expected to result in a neuropraxic legion only. 2. Overlying stretch injury to the lower and middle fibers of her trapezius, with subsequent further deterioration in her inability to stabilize her right shoulder. 3. Mild right shoulder adhesive capsulitis. Dr. Schultz recommended intensive rehabilitation and possible surgical intervention involving a muscle transfer. Dr. Schultz noted the previous inconsistent EMGs and ordered a fourth EMG to determine whether or not the stretch injury to the traps has resulted in denervation.

A November 24, 1992, EMG showed significant slowing of the latency of the compound muscle action potential to the serratus anterior on the right side, with temporal dispersion and reduction amplitude present. There was no evidence of ongoing denervation in the serratus anterior. On physical examination on December 16, 1992, Dr. Schultz noted that applicant continued to have a degree of scapular winging in excess of what would be expected for the long thoracic nerve palsy. On January 7, 1993, Dr. Schultz noted that applicant was improving in scapula stabilization. In justifying applicant's need for a home biofeedback unit to applicant's HMO, Dr. Schultz stated On January 15, 1993, that applicant "sustained a right long thoracic nerve injury in 10/90, and has had persistent scapular winging since that time. She has developed increasing right shoulder pain since that time, secondary to a stretch injury of the rhomboid and trapezius musculature on the right side." On February 9, 1993, Dr. Schultz noted improvement in using muscles in the middle and lower trapezius, in external and internal rotation at the shoulder, and in flexion without winging.

On March 23, 1993, Dr. Schultz responded to applicant's HMO's denial of coverage for three months of occupational therapy. Dr. Schultz stated that the three month course of occupational therapy was "for an overuse and stretch injury to the right shoulder girdle, particularly the rhomboids and lower fibers of the right trapezius. This patient initially suffered a stretch injury to the long thoracic nerve in October, 1990, and when she was referred to therapy in November, 1992, it was not for treatment of the long thoracic nerve injury, but for the stretch injury in the rhomboids in the right trapezius musculature." In a March 23, 1993, letter to Dr. Siepmann, Dr. Schultz opined that the scapular winging was work-related as it all began in October of 1990 when she was trying to restrain a prisoner and long thoracic nerve injuries most commonly occur with stretch injuries.

In a practitioner's report (WC-16-B) dated April 6, 1993, Dr. Schultz indicated that applicant's injury to her long thoracic nerve was directly caused by the October 18, 1990, work incident and also indicated that the condition was caused by an appreciable period of workplace exposure that was either the sole cause of the condition, or at least a material contributory causative factor in the condition's onset or progression.

On April 7, 1993, the applicant filed an Application for Hearing describing the October 18, 1990, incident and working rotating shifts. Applicant alleged injury and disability as damage to the long thoracic nerve and development of fibromyalgia in the back and right shoulder.

The applicant was referred to Dr. Melvin Post, an orthopaedic surgeon whose practice is limited to shoulder surgery, practicing in Chicago, Illinois. In his report of August 25, 1993, Dr. Post indicated that "The patient stated that she injured her right shoulder girdle at work on October 12, 1990 while taking a patient to court when the patient reacted violently, causing her right arm to be severely jerked. She developed immediate weakness in the right shoulder and several days later, pain increased." On physical examination applicant had 90 degrees of active elevation in the right shoulder as compared to 155 degrees on the left. Applicant could externally rotate to 60 degrees bilaterally. Bilateral multidirectional instability was present in each shoulder joint. Severe advanced winging was present in the right scapula relating to serratus anterior weakness. Dr. Post noted that an EMG study previously taken confirmed involvement of the long thoracic nerve of Bell consistent with the winging in her right scapula. Dr. Post further stated:

The patient's injury and winging of the right scapula is permanent. There is absolutely no doubt that it is a result of a work injury that she described to me and the sequence of events that followed. It is now irreversible and will not improve and can only tend to worsen, especially with respect to pain. I recommend that the patient have a pectoralis major transfer with fascia lata graft to stabilize the shoulder. This operation has been most successful in a vast majority of patients. Usually it will improve function dramatically. It may even lessen the symptoms of her multidirectional instability. Most patients do not require second stage capsular shifts for the shoulder joint when the scapula is stabilized.

Dr. Gerald Zupnik, respondent's independent medical examiner, reviewed applicant's medical history in a report dated October 12, 1993. Dr. Zupnik also reviewed applicant's September 2, 1992, version of the October 18, 1990, incident in which she described being kicked, and grabbing the prisoner's leg "so the arms were going back and forth with her leg." Dr. Zupnik noted that applicant stated that she may have been kicked in the left shoulder and that she made no reference to having suffered any pain. Dr. Zupnik noted that there was no reference to the October 18, 1990, incident in any treatment note until May 31, 1991, when applicant related her scapular winging to that incident. Dr. Zupnik further noted that around the time of the incident, up to May of 1991, applicant never indicated that she had felt immediate weakness in the shoulder following the incident and then pain, indeed applicant did not describe a "severely jerked" arm until she was treating with Dr. Post. Dr. Zupnik found it inconceivable that even if an injury occurred on October 18, resulting in trauma to the long thoracic nerve, that it would not have been associated with any pain. Dr. Zupnik opined that:

An injury to the long thoracic nerve would have to be such a violent traction type trauma to the shoulder and shoulder blade that of necessity it would have to result in pain. There is neither an indication that such a violent jerking impact occurred to the shoulder (in the recorded statement or to anyone for the seven months following the alleged date); nor is there any history of symptoms associated with this. The patient of course did not notice the winging of the scapula one or two days later. Nor would such be possible. Incidently the preponderance of electrodiagnostic testing by no means makes a strong case for a recent long thoracic nerve injury.

Dr. Zupnik also noted that while applicant claimed to have noticed the winging in October of 1990, the winging was never mentioned in treatment notes until November of 1990. Finally, Dr. Zupnik noted that applicant had been treating for fibromyalgia well before October 18, 1990, and that pain in the shoulder girdles was referenced prior to October of 1990. Dr. Zupnik opined that there was no relationship between applicant's fibromyalgia and working the swing shift, noting that individuals who have altered shifts may experience sleeping problems, but that such problems are the result of, rather than the cause of, fibromyalgia. Dr. Zupnik concluded that applicant's medical and orthopedic problem bore no relationship to her employment.

Dr. Schultz reviewed Dr. Zupnik's October 12, 1993, report, Dr. Post's August 25, 1993, report, along with Dr. Owens' treatment notes, and notes of applicant's therapy treatment. In a letter dated January 21, 1994, Dr. Schultz responded to a number of questions posed by applicant's counsel. Dr. Schultz indicated that he did not believe that the shoulder and neck pain reported by applicant prior to October 18, 1990, provided conclusive evidence that applicant had a long thoracic nerve injury prior to October 18, 1990. Dr. Schultz stated that the fact that applicant did not feel pain on October 18 did not preclude a conclusion that her long thoracic nerve was injured in that incident. Dr. Schultz noted that while "usually an injury to the long thoracic nerve, either through a compression or a stretch mechanism of injury, may cause immediate pain, this is not always the case, as pain can sometimes be more pronounced several days later." Dr. Schultz did not believe it was inconceivable that pain did not immediately accompany the injury, especially given applicant's underlying pain condition, i.e. fibromyalgia. Dr. Schultz also noted, after reviewing applicant's 1990 therapy reports, that the only thing that could be said with certainty was that the scapular winging was definitely present by November 14, 1990. (2)   Although noting the inconsistent reports, Dr. Schultz believed that the EMG he performed on November 24, 1992, did show a prior definite injury to the long thoracic nerve. Dr. Schultz found no conclusive evidence from the reports reviewed by him that would lead him to change his opinion that the injury of October 18, 1990, did, to a reasonable degree of medical probability, cause an injury to applicant's long thoracic nerve.

In a letter to applicant's attorney dated January 25, 1994, Dr. Post noted that he performed a pectoralis major transfer on applicant on January 14, 1994. Dr. Post further stated:

In addition, the patient has congenital multi-directional instability and definite EMG findings of an injury long thoracic nerve that innervates the paralyzed serratus anterior muscle. The question the patient posed to me was whether or not the nerve injury could have been caused by her injury at work on October 18, 1990. In answer to that, unless there is some other evidence to the contrary or another history of injury, the winging of the scapula was causally related to the injury described to me in that she does have a paralysis of the muscle. Multidirectional instability which may be associated at times with winging of the scapula is not related to injury of the long thoracic nerve. Accordingly, it is my considered opinion that the patient sustained an injury that caused her current problem.

With respect to whether or not all patients have pain in the scapula following an injury to the nerve, the answer is that not all patients have pain with long thoracic nerve injuries and associated winging of the scapula.

Dr. Post last examined applicant on May 23, 1994, at that time applicant noted pain when using her right arm away from her body and in the overhead position. Dr. Post indicated that applicant could return to work lifting no more than 3 or 4 pounds with both hands to low chest level. Applicant was to avoid repetitive motions away from her body. Finally, Dr. Post recommended seven to eight weeks of physical therapy for gentle active assisted and passive range of motion exercises. Applicant did attend such therapy.

Dr. Post testified that applicant does have bilateral congenital multidirectional instability in each shoulder causing the shoulders to subluxate or dislocate. This was consistent with her childhood need to shrug her shoulders to put them back in place. However, Dr. Post testified that such condition may cause bilateral winging but would not require surgery. Applicant's winging was not bilateral and was due to the long thoracic nerve injury. Dr. Post testified that following an injury to the long thoracic nerve some people would feel their shoulder blade stick out hours or a day later, but it varies for person to person. More often than not, people do not complain of pain right away and it may take weeks or several months for pain to develop. The reason being is that the pain comes from the stretching of the muscle fibers as the extremity hangs, not the injury to the nerve itself. Dr. Post further testified that an injury to the long thoracic nerve does not require a severe type of jerking, and indeed does not require any jerking. Most often it is caused by traction, and can result from a minor stretching of the nerve. Dr. Post further testified that the date that winging is first noticed does not identify the time at which the injury occurred, and winging could have been present for some time. Dr. Post testified that applicant should avoid any jerking activities, such as pulling herself up ladders, any time in her lifetime. On August 16, 1994, Dr. Schultz authorized applicant to return to work with restrictions.

The initial issue to be decided is whether, assuming applicant sustained work injuries, applicant's claims are barred because she failed to provide notice of disability and/or injury as required by sec. 102.12, Stats. (3)

Section 102.12, Stats., contains two inter-related conditions for maintenance of a compensation claim: (1) The employer must receive notice of an injury within thirty days after the injury or within 30 days of when the employe knew or ought to have known the nature of his disability and its relation to her employment. However, absence of notice does not bar recovery if the employer was not misled thereby. (2) Regardless of whether notice was received, the action is barred if no application is filed within two years from the date of injury or from the date the employe knew or ought to have known the nature of the disability and its relation to the employment. However, recovery is not barred if the employer knew or should have known, within the 2-year period, that the employe had sustained the injury (not the disability) on which the claim is based.

In this case, the applicant was aware of her injury to her shoulder and long thoracic nerve and believed that it was the result of the October 18, 1990, incident. The applicant had never apprised any treating doctor of the October 18, 1990, incident, and her belief that her winging related to that incident, prior to initiating her equal rights complaint. The October 18, 1990, incident is not mentioned in any medical notes until May 31, 1991. Even when pressed by Dr. Boyle for an explanation for the winging in January of 1991 applicant could offer none. Indeed, it was not until May 31, 1991, after applicant filed her equal rights complaint arguing that she was being discriminated against because she did not have a work injury, that the applicant finally presented her doctors with a cause of the winging.

Applicant claimed to have reported the incident to Dr. Capasso on November 9, 1990, and claims that the winging was noted during such exam. However, Dr. Capasso's notes of the exam contain neither a mention of winging nor of an acute incident. Applicant claimed she reported the October 18, incident to Dr. Boyle as of January 2, 1991. Dr. Boyle's notes make no mention of the incident. Indeed, Dr. Boyle specifically stated in his January 2, 1991, note that the applicant could recall no injury. It is incredible to believe that applicant would mention the winging and October 18, incident to Dr. Capasso and that he would fail to record such information and then applicant would mention the October 18 incident to Dr. Boyle and he too would fail to mention it. Rather, the commission believes that the incident was never mentioned to Dr. Capasso or to Dr. Boyle.

The applicant did not inform her employer of the relationship between the work incident and her winging until she obtained a monetary settlement of her equal rights complaint. The employe failed to exercise reasonable diligence in obtaining a medical opinion on causation by withholding the facts of the October 18 incident from her treating doctors until May 31, 1991. She intentionally misled the employer prior to and during the pendency of her equal rights complaint as to the work relatedness of that injury by withholding such information from her employer. In addition, the applicant's rationale for not informing her employer of the relationship between her scapular winging/long thoracic nerve injury did not relate to uncertainty about that relationship, but was done as a tactical matter. She intentionally withheld the facts of the October 18, 1990, incident as a tactical decision awaiting a favorable resolution of her equal rights complaint. Her eventual notice of injury to the employer on June 13, 1992, was prompted by the settlement of the equal rights complaint. The commission finds that the applicant failed to give notice of the nature of her disability and its relation to her employment within 30 days after she knew or ought to have known of the nature of that disability and its relation to her employment.

The next issue to be decided is whether the employer has been prejudiced by applicant's failure to give timely notice. The employer has the burden of showing that it has been prejudiced by such failure. City of Milwaukee v. Industrial Comm., 21 Wis. 2d 129, 136 (1963). The employer argues that it has been prejudiced because the absence of notice led to its settlement of the equal rights claim. The individual who approved the settlement for the employer testified that if she had known that applicant had sustained a work injury she would not have settled the equal rights complaint. If the applicant had been honest about the work-relatedness of her injury at the time of the equal rights claim the employer could have raised the exclusivity provision which would have caused dismissal of the claim. (4) Further, since the basis of applicant's equal rights complaint was that she was being treated differently because she did not have a worker's compensation injury, there would have been no reason for the employer to have settled the claim if it knew she did have a worker's compensation injury, since she would not have stated a claim for discrimination.

Applicant argues that settlement of the equal rights complaint is not the kind of prejudice the statute is referring to. Applicant maintains that the statute contemplates prejudice caused by a delay in time such as the inability to obtain statements, medical records, independent medical exams, and investigate the facts of the accident. The commission disagrees. Clearly, the lack of notice caused the employer to act to its detriment by paying money as part of the equal rights settlement. At the time of applicant's complaint, the employer would not have faced exposure in an equal rights forum for applicant's work injury. The language in the equal rights settlement specifically excluding worker's compensation claims was properly viewed by the employer at that time as surplusage. Indeed, the individual who approved the settlement for the employer testified that she knew that such language was meaningless.

Further, the commission finds that applicant is equitably estopped from asserting that her scapular winging/long thoracic nerve injury is work related. The employe filed an equal rights complaint alleging that she was being discriminated against because her scapular winging was not work related. Her present claim that her scapular winging is work related is clearly inconsistent with that earlier position. At the time of the equal rights complaint and up until the applicant knew her condition was work related and was intentionally withholding that information from her doctors and the employer. She continued to withhold information regarding the work relatedness of her injury from the employer for tactical reasons until after she settled the equal rights complaint. The employer relied on the applicant's initial position, that she did not have a work injury, to its detriment when it paid out $1,700 as a settlement.

The next issue is whether applicant's fibromyalgia claim is barred under sec. 102.13, Stats.

The employer was aware that applicant was suffering from fibromyalgia at least by the time of Dr. Capasso's examination on November 9, 1990. Applicant testified that she believed her fibromyalgia may have been work related after attending a seminar which discussed the fact that it could be caused by working the swing shift. Apparently, this prompted applicant's husband's call to Dr. Owens on June 13, 1992. At that time, Dr. Owens agreed that there could be a connection. Applicant did not notify the employer within 30 days of June 13, 1992, that she was suffering from work-related fibromyalgia. However, the evidence does not establish that applicant knew or should have known at the time she filed her equal rights claim, or at the time of the settlement of that claim that the fibromyalgia was potentially work related. Further, even if notice was not given the employer has not demonstrated that it was misled by the lack of notice. Finally, the employe did give notice within 2 years of the June 13, 1992, contact with Dr. Owens as she filed her Application for Hearing on April 7, 1993.

The next issue is whether applicant has sustained her burden of proof in establishing that her fibromyalgia was caused by an appreciable period of workplace exposure, and that the exposure was either the sole cause of the condition, or at least a material contributory causative factor in the condition's onset or progression.

The commission finds that applicant has not submitted a sufficient medical opinion that her fibromyalgia was caused by her work. The only support for such claim is the recorded phone call of June 18, 1992, from applicant's husband to Dr. Owens. Applicant's husband questioned whether Dr. Owens would be able to testify that working the swing shift for the employer contributed to the applicant's fibromyalgia. Dr. Owens indicated that she believed a swing shift schedule could contribute to applicant's symptoms but questioned how strong her testimony would be given the lack of documentation that it was discussed in any detail. No additional testimony regarding the work-relatedness of applicant's fibromyalgia is contained in the file. That working a swing shift can contribute to fibromyalgia does not establish that her fibromyalgia was caused by an appreciable period of workplace exposure or that working a swing shift was a material contributory causative factor in the fibromyalgia's onset or progression. The commission accepts the only competent medical opinion in the record, Dr. Zupnik's opinion. Dr. Zupnik opined that there was no relationship between applicant's fibromyalgia and working the swing shift, noting that individuals who have altered shifts may experience sleeping problems, but that such problems are the result of, rather than the cause of, fibromyalgia.

ORDER

The findings of the administrative law judge are modified to conform with the foregoing findings. The order of the administrative law judge is affirmed. Accordingly, the application is dismissed.

Dated and mailed May 21, 1997
dobbibi.wrr : 132 : 1 ND 8.47

Pamela I. Anderson, Chairman

David B. Falstad, Commissioner

cc: ATTORNEY JOSEPH DANAS JR
BORGELT POWELL PETERSON & FRAUEN SC

ATTORNEY JOHN A NEAL
CURTIS WILDE & NEAL LAW OFFICES


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Footnotes:

(1)( Back ) Attorney John Neal was not applicant's attorney for her equal rights action.

(2)( Back ) As indicated previously, the first notation of winging was on November 12.

(3)( Back ) Section 102.12, Stats., provides: No claim for compensation may be maintained unless, within 30 days after the occurrence of the injury or within 30 days after the employe knew or ought to have known the nature of his or her disability and its relation to the employment, actual notice was received by the employer. . . . Absence of notice does not bar recovery if it is found that the employer was not misled thereby. Regardless of whether notice was received, if no payment of compensation, other than medical treatment or burial expense, is made, and no application is filed with the department within 2 years from the date of the injury or death, or from the date the employe or his or her dependent knew or ought to have known the nature of the disability and its relation to the employment, the right to compensation therefore is barred, except that the right to compensation is not barred if the employer knew or should have known, within the 2-year period, that the employe had sustained the injury on which the claim is based. Issuance of notice of a hearing on the department's own motion has the same effect for the purposes of this section as the filing of an application. This section does not affect any claim barred under s. 102.17 (4).

(4)( Back ) Applicant's equal rights claim was settled prior to the Wisconsin Supreme Court's decision in Byers v. LIRC and Northern Manufacturing Co. and Norenberg, No. 95-2490 (April 18, 1997).