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


JENNIFER DUKE, Applicant

LUTHER HOSPITAL CORP, Employer

EMPLOYERS INS OF WAUSAU, Insurer

WORKER'S COMPENSATION DECISION
Claim No. 91040639


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, except that it makes the following modifications:

1. On page 12 of the ALJ's decision, after the last sentence of the second paragraph beginning on that page, insert:

"The total additional award for temporary total and temporary partial disability under this order equals $3,527.27."

2. On pages 12 and 13 of the ALJ's decision, delete the third and fourth paragraphs beginning on page 12 and the first paragraph beginning on page 13, and substitute:

"The applicant is also entitled to eight percent permanent partial disability as compared to amputation at each shoulder. The total award for permanent partial disability is thus 84.112 weeks at $144 per week (the statutory maximum rate for injuries sustained in 1992), totaling $12,112.13, all of which is accrued.

"The total additional compensation for temporary and permanent partial disability equals $15,639.40. The applicant approved protection of an attorney fee on twenty percent of the additional amount awarded under Wis. Stat. 102.26. The fee equals $3,127.88, and together with costs of $280.78, shall be deducted from the applicant's award. This leaves an amount payable to the applicant of $12,230.74 for disability compensation."

3. In the first clause of the ALJ's Interlocutory Order, delete "to the applicant, Jennifer L. Duke, the sum of Twelve thousand and six hundred and seventy-eight dollars and sixty-four cents as compensation ($12,678.64)" and substitute "to the applicant, Jennifer L. Duke, the sum of Twelve thousand two hundred thirty dollars and seventy-four cents ($12,230.74)".

4. In the second clause of the ALJ's Interlocutory Order, delete "to her attorney, Manlio Parroni, the sum of Three thousand two hundred and thirty-nine dollars and eighty-five cents ($3,239.85)" and substitute "to her attorney, Manlio Parroni, the sum of Three thousand one hundred twenty-seven dollars and eighty-eight cents ($3,127.88)".

ORDER

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

Dated and mailed: April 7, 1998
dukeje.wmd : 101 : 5 ND 5.15  5.33

/s/ David B. Falstad, Chairman

Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner


MEMORANDUM OPINION

The ALJ concluded the applicant sustained temporary and permanent disability as the result of a work-related occupational shoulder injury. On this point, the ALJ adopted the notes and expert opinion of Dr. DeCesare and Dr. King who diagnosed thoracic outlet syndrome. The ALJ also rejected Dr. DeCesare's unscheduled disability rating for the injury, finding his prior rating of scheduled disability at both shoulders more credible.

Specifically, the ALJ awarded permanent disability at eight percent at the shoulders bilaterally, less than the ten percent bilateral ratings given by Dr. DeCesare. The ALJ based her rating on the applicant's continuing subjective complaints, her two invasive surgeries, and weakness. The ALJ also assigned a May 28, 1992 date of injury, which is the first time when the applicant missed work for the shoulder complaints.

The employer and insurer (collectively, the respondent) appeal. It argues first that there is no support for the finding of a bilateral shoulder problem, much less thoracic outlet syndrome, other than the applicant's incredible subjective complaints. It contends Dr. Gerol's opinion about the cause of the applicant's problem (depression unrelated to work) is more credible than that of Drs. DeCesare and King. It also argues that in any event it should get a credit for its previous payment of permanent partial disability.

The commission is satisfied that the ALJ reached the correct conclusions based on the record. It therefore affirms her decision, except for a modification in the calculation of the award to account for the prior rating for permanent disability at the elbows.

The commission, like the ALJ, finds the opinions of Drs. King and DeCesare more credible than those of Dr. Gerol. Dr. Gerol discounts the diagnosis of thoracic outlet syndrome for the applicant's long-standing shoulder complaints. Dr. Gerol contends that diagnosis relies inappropriately on the "Statue of Liberty" test and on a venogram.

The commission is satisfied that the "Statue of Liberty" test, performed by both Dr. King and Dr. DeCesare, was properly used to diagnose thoracic outlet syndrome. Moreover, Dr. King noted the pulse was obliterated during the Statue of Liberty test on February 14, 1995, not merely "somewhat decreased" as Dr. Gerol reported. The commission also considered Dr. Gerol's opinion that an arterial blood flow test, not a venous blood flow test, was necessary to diagnose thoracic outlet syndrome. On the other hand, of course, both Dr. King and the performing radiologist thought a venous test was appropriate. Thoracic outlet syndrome occurs when the neurovascular bundle (the brachial plexus and subclavian artery and vein) is compressed when it emerges from the thoracic outlet. (1) Dr. Gerol does not explain why a venous test is inadequate to judge whether compression exists. In the absence of guidance from an expert in support of Dr. Gerol's statement that a venogram is inadequate, the commission finds it reasonable that the compression at the thoracic outlet may be gauged by examining either the vein or artery, or perhaps by starting with the vein and then testing the artery. (2)

The commission also cannot credit Dr. Gerol's disagreement with Dr. King's observation that the applicant's anatomy, as observed during surgery, was unusual. Dr. King had a firsthand observation, after all, and Dr. Gerol did not. Moreover, Dr. King's description correlates with the type of compression one might expect could cause the applicant's symptoms.

The commission did consider the possibility of symptom exaggeration. Dr. O'Connor, the orthopedic surgeon whom the applicant saw at the Midelfort Clinic did suggest a nonphysiologic complaint to some degree. Exhibit I, note for February 2, 1993. On the other hand, Dr. O'Connor agreed the applicant clearly had pain, and the applicant underwent three surgeries to resolve her shoulder problem. The applicant reported to some improvement, at least for some time, after each of her three surgeries. Moreover, the ALJ reduced the permanent disability award from the level assessed by Dr. DeCesare. The commission is not inclined to conclude the applicant was malingering and reverse the award under these circumstances.

The commission also acknowledges that early in the treatment of her shoulder condition Drs. Bodeau and Zondag thought the applicant's shoulder problems were not work-related. However, Dr. Zondag's opinion may be disregarded because he did not think the applicant's job involved reaching, and Dr. Bodeau changed his mind once further testing ruled out a systemic or rheumatological cause for the shoulder problem. In sum, the commission agrees with the ALJ's decision to find work causation of thoracic outlet syndrome causing temporary disability and permanent disability at each shoulder. (3)

The commission also agrees that the amount of permanent disability rated by ALJ Schiavoni at the shoulders may not be reduced on a dollar-for-dollar basis by the amounts paid under the limited compromise agreement for disability at the elbows. (4) First, Drs. Bodeau and DeCesare's notes indicate the applicant has disability at both the elbow and the shoulder. Second, the shoulder and elbow disabilities do not arise from the same date of injury. Third, no doctor opines, as far as the commission can tell, that thoracic outlet syndrome problems explain the forearm problem for which disability was rated at the elbow, or that disability to the forearms was included in the shoulder rating. Indeed, Dr. DeCesare's opinions indicate exactly the opposite.

However, the commission concludes that the ALJ made one error in calculation by failing to reduce the 500-week base for the shoulder rating by the previous weeks of permanent disability paid for at disability rated at each elbow under the compromise agreement. A base reduction is required in this case under Wis. Admin. Code DWD 80.50. That section requires subtracting weeks paid for "more distal" disabilities [further from the body trunk] from the base for calculating "more proximal" disability, regardless of whether the more distal disability was from the work injury or pre-existing. Here, the more distal disabilities of six percent compared to loss of left arm at the elbow and four percent compared to loss of the right arm at the elbow amounted to 27 and 18 weeks of permanent disability, respectively, to be subtracted from the five hundred-week base for the respective shoulders. This works a slight reduction in permanent partial disability from the 88 weeks awarded to 84.112 weeks. (5)

cc: ATTORNEY WILLIAM R GARDNER
STILP & COTTON

ATTORNEY MANLIO G PARRONI
PARRONI SIEDOW & JACKSON SC


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Footnotes:

(1)( Back ) While the theory used to be that thoracic outlet problems were arterial, the prevailing view now is they are neurologic. See generally, 12 Attorney's Textbook of Medicine 100.51 and 13 Attorney's Textbook of Medicine 176.33.

(2)( Back ) The course Dr. King began but ceased based upon a venogram showing that the vein was grossly compressed.

(3)( Back ) Prior commission decisions have accepted disability ratings for thoracic outlet syndrome at the shoulder rather to the body as a whole. See Ostrum v. Ore-Ida Foods, WC case no. 89024090 (LIRC, June 1, 1995), affirmed sub nom. Ostrum v. LIRC, case no. 96-0621 (Wis. Ct. App., October 16, 1997); Loisel v. Unisys, WC case no. 88014908 (LIRC, March 12, 1993); and Syzdel v. Manpower Temporary Service, WC Claim no. 94036431 (LIRC, December 5, 1997).

(4)( Back ) The respondent, on appeal, does not contend that the limited compromise of the applicant's claim for disability at the elbows bars the applicant's current claim for disability at the each shoulder as a matter of law. Rather, the respondent contends that any permanent disability the applicant may have was fully compensated and accounted for by the amounts paid under the limited compromise agreement.

(5)( Back ) The disability at the left shoulder, then, is 8 percent of a 473-week base, or 37.84 weeks. The disability at the right shoulder is 8 percent of a 482-week base, or 38.56 weeks. The lesser disability in the left shoulder is subject to the multiple injury factor of 20 percent under Wis. Stat. 102.53, yielding an additional 7.712 weeks of disability. In sum (37.84 plus 38.56 plus 7.712) equals the 84.112 weeks of permanent partial disability awarded under the order as amended.